R v Reid

The Conviction Appeal

1. The sole ground for appeal against the appellant's convictions is that she should be diverted into the mental health system under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act) and s 20BQ of the Crimes Act 1914 (Cth) (the Cth Crimes Act).
2. The appellant contends that in the periods of offending, she suffered from a 'mental health impairment' (for the purposes of s 4 of the MHCIFP Act) and 'mental illness' (for the purposes of S 20BQ(1)(a) of the Cth Crimes Act).
3. The appellant relied upon a psychologist report prepared by Mr George Dieter, a psychologist, dated 27 March 2023, which necessarily post-dated her conviction and sentencing for the offences.
4. The parties commonly structured their respective written submissions with reference to 2 issues, being: 1. whether the appellant had, at the dates of offending, a mental health impairment or mental illness; and (if she did) 2. discretionary considerations as to whether she should be diverted (enumerated, especially, under s 15 of the MHCIFP Act)

Mr Dieter's report

1. Mr Dieter has been a practising psychologist in the private sector for 10 years. Before that he worked as a psychologist with the Department of Juvenile Justice.
2. In his report, Mr Dieter indicated that he relied upon the Police Facts Sheet (which I have alluded to earlier), a face-to-face interview with the appellant, a letter of referral from the appellant's general practitioner (Dr Gunawardhana) and the appellant's results of psychometric testing.
3. Mr Dieter took a family history from the appellant. This essentially indicated that the appellant grew up in the Central Coast for most of her childhood. She was the eldest of two children. Both parents worked: the father was, throughout his career, an engineer whom the appellant described as being an 'absent father'; her mother who worked in customer service at Woolworths, assumed the role of family disciplinarian. In the early part of childhood and through the appellant's early teenage years, the appellant described her relationship with her mother as being quite strained, until she became an adult. Before then, the appellant had some earlier sexual experiences with older men. When the appellant was about 14, she attended family counselling when her mother found out about her earlier sexual contact.
4. As a child, it appears as though the appellant was quite sporty. Socially, whilst at high school, she struggled somewhat. Aside from one close friendship, she said that she felt as though she was an outsider and kept to herself. It did not help her when news had leaked out about her sexual experiences in high school.
5. Both parents inculcated in the appellant the importance of education. The appellant told Mr Dieter that she enjoyed studies, albeit that she suffered a lack of attentiveness and found it difficult to concentrate. Although not diagnosed at the time, her mother suspected that the appellant had ADHD, but this condition had not been diagnosed and therefore the appellant received no medication for this. But she went on to study, after school, and eventually obtained a Bachelor of Arts degree in Media. She graduated in 2018 and is currently enrolled in a Master's Degree in Teaching with a view to becoming an early childhood teacher. Whilst conducting her studies, she has worked at Woolworths and technically, is still employed there notwithstanding that she has been on maternity leave.
6. In terms of her personal relationships, aside from the previous references to her early sexual experiences, the appellant referred Mr Dieter to two significant relationships. First was with a man whom she met when she was 19 years of age. Out of this relationship, she gave birth to a daughter, who is now five years of age. Unfortunately that relationship broke up when the child was only a few months old; however, according to the appellant, they get on well and co-parent well. The second relationship is more relevant to this proceeding, involving as it did, a victim of both offences, being Ashley Pobje. Out of this relationship the appellant gave birth to another child, who was born in March 2022. Unfortunately, this relationship was troubled; which the appellant attributed to her partner's inability to control his anger. She claimed that he had become physically and verbally abusive towards her. She followed the advice of her former partner and obtained an AVO (for the benefit of herself and her two children) against him on 26 May 2022. This ended this relationship.
7. The appellant is now the sole carer for two dependent children aged a year and 5 years old. She receives a Single Parenting Payment and child support from her two ex-partners.
8. Mr Dieter's report set out in detail the results of his assessment of the appellant. This included, most relevantly, the results of psychometric assessment and in this regard, Mr Dieter refers to his administering to the appellant a Depression, Anxiety and Stress Scales (DASS), Alcohol Use Disorder Identification Test (AUDIT) and a Personality Assessment Inventory (PAI). It is this last form of testing, which is perhaps the most pertinent in view of the nature of this appeal. Mr Dieter described this form of assessment as assessing aspects of an individual's personality and psychopathology.
9. Mr Dieter interpreted the appellant's PAI 'profile'. This included that the appellant had significant thinking and concentration problems accompanied by prominent distress and ruminative worry. The appellant was likely to be withdrawn and isolated, with few interpersonal relationships that could be described as close and warm. She may have limited social skills with particular difficulty interpreting the normal nuances of interpersonal behaviour. Mr Dieter thought that the appellant was likely to be fairly rigid in her thinking and ruminated about matters to a degree which impeded her decision-making and ability to see the larger significance of decisions that she made. He considered that she was likely to be emotionally labile, manifesting fairly rapid and extreme mood swings. He expected that she had a history of involvement in intense and volatile relationships and being preoccupied with consistent fears of being abandoned or rejected. In terms of her own conception of herself, the appellant's attitude was likely to fluctuate. Personal perception could vary from states of harsh self-criticism and severe self-doubt to periods of relative self-confidence. But her self-esteem was quite fragile and was likely to plummet in response to perceived slights from other people. Overall, Mr Dieter regarded the appellant's interpersonal style as being 'remote and self-centred'.
10. Turning to the material parts of Mr Dieter's opinion, the psychologist correlated the findings that he had made from the appellant's PAI profile and a range of diagnoses that accorded with the DSM-IV but then qualified this by stating that "full consideration while all available sources of information should be considered prior to establishing final diagnoses". He then listed six diagnoses on 'Axis I' and two diagnoses on 'Axis 2'.
11. In the section of his report titled 'Summary/Conclusion', Mr Dieter noted that the concerns the PAI has regarding the validity of its profile is based on being a "statistical rather than diagnostic tool"; adding that "answers by the respondent are compared to a sample population, which can lead to unwarranted concerns". Nevertheless, although he appeared to express scepticism about what the appellant had told him regarding the significance of potential substance abuse (which the appellant denied having any history of), he regarded the PAI profile, overall, as constituting a 'valid reflection of her'. In particular, he summarised her childhood by finding, as the most fitting description, that the appellant was 'never allowed to be a child'. He believes that there had been an oversight in the lack of diagnosis for ADHD. Then, after having regard to other factors in her life, Mr Dieter summarised her life as follows: "Ms Reid throughout life displayed acting-out behaviours, which were explained by some external factors. However difficulty with concentration, early sexual acting out, the mood swings she reported, going from boundless energy, accompanied by thinking of superiority, to an almost paralysing low mood suggest the presence of a mood disorder."
12. After referring to the likelihood of her having ADHD, Mr Dieter went on to say that: "… Her sense of superiority, lack of need of sleep, boundless energy, uncontrolled over-eating, hyper-sex drive, followed by sluggishness, lack of motivation and excessive sleep, plus a risk-taking behaviour suggest the presence of a Bipolar II Disorder. Of the various disorders the PAI suggests a Bipolar II Disorder (DSM V 296.89) seems to best account for Ms Reid's reported symptomatology and also for the current offences. Comorbidly she may also suffer from ADHD."
13. Although acknowledging reasons for concern about the validity of the PAI testing, nevertheless, Mr Dieter considered that the results suggested diagnoses which allowed for the conclusion that the appellant does suffer from a mental illness for which treatment in a mental facility is available. Mr Dieter further asserted that in his professional opinion, the appellant was, at the time of the incident, suffering from a mental health impairment but was not a mentally ill or disordered person. He elaborated that the nature of this condition constituted an 'affective disorder', possibly made worse by an ADHD condition: he explained that both Bipolar II and ADHD shared the common factor of a lack of impulse control.
14. Although the appellant was capable of managing to control her emotions to a great degree, particularly when interacting with children in her working capacity, Mr Dieter explained that when confronted with disrespect, neglect or confrontation, her emotionally defective upbringing came to the fore and further inhibited her decision-making ability and her fear of emotional abandonment misguided her decisions.
15. The psychologist considered that, with appropriate treatment, her condition was manageable and would improve. He was impressed by the appellant's presentation, her intelligence and insight into her actions and reasons for it. (This, I might interpolate appeared to be the same impressions formed by police when they dealt with her). He felt that there were favourable prognostic signs but acknowledged that the treatment plan that he had devised was likely to be challenging. He laid out a detailed treatment plan. Significantly, however, part of that plan involved a referral from her general practitioner to a psychiatrist to "confirm above diagnoses and prescribe, as deemed necessary, the appropriate psychotropic/active medication".

The appellant's submissions

1. The appellant submits that she has proved, on the probabilities, that she has a mental health impairment; relying upon Mr Dieter's opinion of her having an affective disorder, Bipolar II Disorder, possibly aggravated by ADHD. The appellant submits that the nature of the offending was consistent with this opinion, in the way that it evinced her reacting impulsively and during a term of emotional upheaval, caused by the victim ignoring her attempts to contact him.
2. The appellant referred to observations in DPP v El Mawas (2006) 66 NSWLR 93 at [71]-[76] and, in particular, the balancing exercise to be struck between treating the offender in the criminal justice system and diverting the offender into the mental health stream. Submissions were made about the seriousness of the offending: for sequence 2, the offending was at the lower end: messages sent were not threatening and were attempts, albeit of a harassing nature, that proved this element of the offence. This reflected the learned Magistrate's findings. About the sequence 1 offence, the appellant accepted that the offending was serious, but was still slightly below the mid-range. But even though the victim gave a warning to the appellant, he did not report the receipt of the video until over 3 weeks after the other victim (Mr Pobje) reported the harassing behaviour the subject of sequence 2. The victim's delayed response was indicative that harm caused to Mr Pobje was not serious.
3. The appellant invoked Muldrock principles to argue that, in view of her mental conditions, general deterrence would be significantly moderated; as well as the considerations of retribution and denunciation.
4. Emphasis was also placed on documentation in the Crown bundle on the severity appeal which indicated, relevantly, attempts by the appellant to seek treatment and evidence of her studies, at University, which corroborated the information, in that regard, which she had provided to her psychologist.

The Crown's submissions

1. Addressing the first limb, the Crown submitted that the appellant had not discharged her onus, even on the probabilities, that she has or had a mental impairment or mental illness. So the threshold for diversion was not crossed.
2. The Crown argues that Mr Dieter did not make a diagnosis; which, in any case, he was not qualified to make. Further, the Crown notes that an important, if not pre-eminent, basis for the suggested diagnosis, being the results for the PAI profile, were manifestly attended by doubt. The highest that Mr Dieter went was to 'suggest' potential diagnoses given the testing that he had performed, but even then, part of his suggested treatment plan involved a need for a referral to a psychiatrist to confirm the diagnosis, or diagnoses, which he had suggested.
3. Until a psychiatrist gave a diagnosis, the order for diversion should not be made. To that end, the Crown signalled that it would not oppose an adjournment so as to facilitate a proper report, inferentially, from a psychiatrist.
4. Addressing (on the premise that its primary submission was not accepted) discretionary factors under s 15 of the MHCIFP Act, the Crown observed that: 1. the appellant had no prior convictions; 2. the sentences imposed reflected the Local Court's assessment of the seriousness of the offending; 3. the appellant had not previously been subject to an order under the mental health legislation; 4. a treatment plan had been prepared; 5. the Court needs to consider whether the appellant is likely to endanger the safety of the victims; 6. since the offending, the appellant has sought a psychologist's opinion, but there is no formal diagnosis.
5. By s 15, the Court may take into account other relevant factors. The Crown reiterates its view that a further diagnosis is required.
6. In his submissions in reply, the appellant's solicitor argued that it was not permissible or proper for the Crown to criticise the sufficiency of Mr Dieter's advice: the Crown did not require Mr Dieter to attend the hearing for cross examination, nor did it call its own psychiatric expert.

Consideration

1. The appellant's solicitor did not apply for an adjournment to enable a psychiatrist's opinion to be obtained, as suggested by the Crown.
2. I substantially accept the Crown's submissions. Although I recognise the thoroughness of Mr Dieter's report, I am concerned about the qualified or hedged nature of his diagnoses which was substantially derived from PAI testing whose limitations were expressly acknowledged by Mr Dieter. It is curious to observe that much of the PAI profiling depends substantially upon statistics from sampling. This is not to say that a psychologist would never be qualified to express opinion about mental illness or mental impairment, and the Crown accepted this, but it is particularly pertinent that Mr Dieter himself also considers that a psychiatrist's view should be obtained to confirm his own provisional diagnoses. In this last respect, I note that the treatment plan for the appellant, understandably, speaks essentially, only in terms of psychological therapies. Omitted, unsurprisingly, is any reference to prescribed medications, which only a psychiatrist can prescribe. That is important for the appellant, especially in a context where, in addition to the provisional diagnoses suggested, there were other suggestions of anxiety and depression which, it might be expected, would indicate a need for medication.
3. I find that the first limb of the test is not satisfied. That is enough to dispose of the application for diversion. If it was necessary to decide, I would have also found, for the same reason, that there was an insufficiency in information to engage in the discretionary analysis required by the legislation. In short, the content of the descriptions of the apparent diagnoses of mental health impairment were not convincing (s 15(a) of the MHCIFP Act) and the treatment plan was insufficient (s 15(g) of the MHCIFP Act).
4. This being the only basis for the appeal, the conviction appeal must be dismissed and the convictions are confirmed.

Severity appeal

1. After dismissal of her conviction appeal, the appellant adhered to her pleas of guilty to the offences that she entered into in the Local Court in her severity appeal. I have sufficiently referred to the facts. There is not much that separates the parties when considering the objective gravity of the offending.
2. I should observe the maximum penalties for the offending, since that is an important legislative guidepost. For sequence 1, the maximum penalty, when tried on indictment, is 3 years' imprisonment and/or 100 penalty units. At the summary level, the maximum penalties were 2 years' imprisonment and/or 50 penalty units. For sequence 2, it is 5 years' imprisonment. At a summary level, the maximum penalty was 12 months' imprisonment and/or 60 penalty units.
3. It is common ground that the offending for sequence 2 fell at the lower end of the scale. There was some dispute about the seriousness of the offending for sequence 1. I would be inclined to think that there was no real planning or premeditation but, rather, the offending was impulsive. Although some harm may be presumed, there is force to the appellant's submission that the receipt of the video, offensive and hurtful as it undoubtedly would have been, did not provoke immediate complaint by Ms Rolfe, or even Mr Pobje. I would consider that it fell below what might be regarded as the middle end of the range.
4. The offender's subjective case was noted by the Magistrate. The offender was 27 years of age at the time of the offending. The Magistrate expressly took into account, as do I, evidence of her mental conditions, such as they may be, which I find, on the balance of probabilities, did contribute to the offending; marked as the offending was by impulsivity and a heightened emotional state. That emotional state was not only triggered by jealousy, but also frustration with the burden of caring for Mr Pobje's child. This does moderate general and specific deterrence, and also the considerations of retribution and denunciation.
5. The appellant is entitled to a full discount on entry of her guilty pleas. She had no prior convictions and therefore is entitled to the leniency extended to a first time offender. She may also be regarded as having good character and I note that she applies herself well to her work with children. I accept, also that she has expressed remorse and contrition. As to her good character, I have taken into account the references of the mother of her former partner, the former partner himself and her friend, Danielle.
6. I further take into account Mr Dieter's view that the appellant is intelligent and that she has shown insight and distress into her offending. This was consistent with the indication in the Police Facts Sheet that was before the Local Court where the police not only noted the appellant's co-operation and her being "forthcoming with honest information", but also the police opinion that she was very remorseful once informed of the seriousness and illegality of her actions.
7. Further, I take into account Mr Dieter's belief that appropriate treatment suggests that her condition is manageable. He noted, also her motivation. Nevertheless, Mr Dieter realistically opined that her treatment was likely to be challenging. I agree, however, with the learned Magistrate's view that her rehabilitation prospects are good. Indeed, it is striking that for an offender with this appellant's apparent conditions or issues, she has been able to get by in life, generally, without prior offending. I take into account also the letter dated 28 March 2023 from the Central Coast Therapy Centre, which post-dated the sentencing, confirming the appellant's attendance at that centre earlier in the year and also appointments scheduled for May, June and July this year. I also take into account information from the Bar Table to suggest that she has a referral to see a psychiatrist. She is currently on a wait list.
8. In her remarks on sentence, the learned Magistrate rightly emphasised general deterrence and the invasion of the victim's privacy as matters that accentuated the need to impose a sentence holding the appellant to account for the harm that she caused. Nevertheless, it did not appear that the harm to the victim, i.e. the person depicted in the video, Mr Pobje, went beyond that which would be presumed. General deterrence was important, but as I have found, it was substantially moderated by her mental conditions, which made her case a less than perfect vehicle to accentuate that particular consideration. I reach the same view about specific deterrence, denunciation and retribution. Those mental conditions are also important, in my view, in elevating importance of imposing a penalty that will facilitate her rehabilitation which consideration is very closely connected with a need to try to protect the community against future offending.
9. The appellant was unsuccessful in submitting before the learned Magistrate that a discretion not to convict should be exercised.
10. For the state offence, the Court is empowered, in an appropriate circumstance, to make an order under ss 9 and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to discharge the offender under a conditional release order. By s 10(2)(b), the Court may make such order if it is satisfied that it is expedient to discharge the person under a conditional release order.
11. In relation to the federal offence, by s 19B of the Crimes Act 1914 (Cth), once satisfied about any one or more of the matters in s 19B(1)(b) arises the Court may find that it is expedient to release the offender on probation, and may make any of the orders in s 19B(1)(c) or (d).The latter provision contemplates the discharge of the person charged with the federal offence, without proceeding to conviction, upon giving security that the person complies with various conditions, including that the person is of good behaviour for a specified period.
12. When deciding to make such an order for the state offence, the Court will take into account the matters in s 10(3) of the CSP Act. I have referred, already, to the matters raised in that provision. I note that the maximum penalty is not the determinant of 'triviality' (Walden v Hensler (1987) 163 CLR 561 at 577). Whilst I do not consider that the offending for the state offence here was 'trivial', this is not a precondition to the making of that sentencing option (R v AB [2022] NSWCCA 3 at [58]-[59]). I acknowledge harm to the victim, Mr Pobje, who was disgusted by this offence, but that does not appear substantially manifested by his delayed report of it to police. But as I have indicated, due to the clear emotional dependence that she had upon the victim who, the evidence indicates, abused her, the considerations of general deterrence, denunciation and retribution are substantially moderated as to weight. There were some extenuating circumstances. The appellant is a single mother with two young children, from separate relationships, with certain unconfirmed mental conditions, who has applied herself to her studies and is doing well in her job, which involves looking after children. Although the Court has not received the victim, Mr Pobje's, side of the story, as indicated, there is a consistent thread of a narrative in which the appellant was in an abusive relationship with that victim. Coupled with evidence from her psychologist of her sensitivity and anxiety towards slights and the fear of rejection, and a sliding scale of emotion, there are extenuating circumstances concerning sequence 1.
13. By s 10(3)(d), the Court is also empowered to consider other relevant matters. (There is a difference between the federal provision and an order under s 10 of the CSP Act being that in deciding whether to make the respective orders, under the former, the Court is not to take into account other matters which the Court may think appropriate). One of them, in my opinion, would be the deleterious consequences for the appellant should she receive a conviction for the offending; given that the area of work in which she has been employed, apparently successfully or without incident, is working with children. I expect that a criminal conviction could severely prejudice her employment prospects (if not also her educational aspirations). This is a matter that the Court is entitled to take into account (R v Mauger [2012] NSWCCA 51 per Harrison J (Beazley JA -as her Excellency then was - and McCallum JA - as the Chief Justice of the Supreme Court of the Australian Capital Territory then was - agreeing) at [26]-[28]).
14. In my opinion, it is expedient to discharge the appellant under a conditional release order. Further, in my view, it is unnecessary for the Court to obtain a sentencing assessment report from a community corrections officer before making that order.
15. I am inclined to think that for the sequence 2 offence, the offending was of a trivial kind. The other matters in s 19B(1)(i) and (iii) have been considered in reference to the state offence and, despite some factual differences with the state offence, substantially also apply to the federal offence. I find that it is expedient to release the offender on probation.
16. Accordingly, I propose to make the following orders on the severity appeal: 1. The severity appeal is allowed. 2. In relation to sentence for sequence 1, I set aside the sentence imposed by the Wyong Local Court and in lieu, and pursuant to ss 9 and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), impose a conditional release order for 7 months, commencing today, subject to the standard conditions in s 98 and the additional condition in s 99(2)(a), being a rehabilitation or treatment condition that the appellant abide by the treatment plan identified in section 11 of the report of Mr George Dieter. 3. In relation to the sentence for sequence 2, I set aside the sentence imposed by the Wyong Local Court and in lieu, and pursuant to ss 19B(1)(b) and 19B(1)(d)(i) of the Crimes Act 1914 (Cth), order that the appellant be discharged, without proceeding to conviction, of the charge upon her giving security in the amount of $100 and complies with the condition that she be of good behaviour for a period of 7 months. 4. I direct the appellant's legal representative to explain to the appellant her obligations under the conditional release order imposed under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Amendments 18 May 2023 - Amendment made to wording in paragraph [55] 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: 18 May 2023