In relation to various orders that were made at the Local Court on either 27 February 2019 and or 26 March 2019, this matter is a very interesting matter. There has been a huge volume of material to absorb in a relatively short period of time so I trust I can do justice to everything that I have read and I have read a lot of material, including 120 odd page judgment of the District Court of New South Wales as delivered by a former colleague of mine, his Honour Judge Cooper. The matters that the appellant appeals against are matters that arose over a period of time between 26 August 2017 and 11 April 2018.
The appeal is one against sentence; it is a "severity appeal". But it follows from the argument of the parties, particularly the argument of the appellant, that what is sought in essence is to set aside the effect of the convictions recorded by the Magistrate. The crimes that the appellant pleaded guilty to at the Local Court include an offence of assault committed on 26 August 2017. The victim was his then wife. There is a further offence of assault committed against his ex-wife on 29 August 2017. There is a related offence committed on 30 August 2017 of intimidation of his wife involving threatening words. Each of those offences carrying a maximum penalty of two years imprisonment and or a pecuniary penalty of five penalty units.
The next offence in time is an offence committed on 25 October 2017 of possessing a shortened firearm, not a pistol, without authority. Related to that offence are two other offences, one of possessing an unregistered firearm and a third offence of not keep firearm safely; each offence related to the same firearm. Each of these offences carries a maximum penalty of two years imprisonment and or fifty penalty units. Then there is an offence committed on 11 April 2018 of intimidation at Macksville; this carries likewise a maximum penalty of two years imprisonment and or fifty penalty units. The cover sheet suggests that the maximum penalty in the District Court is five years; that is incorrect. The maximum penalty is five years in the District Court if the matter is dealt with on indictment, not if the matter comes to this Court as this matter does having been dealt with in the Local Court.
I was mistaken when I earlier identified the date of the last offence in time. The last offence in time in fact was committed between 16 and 18 May 2018. This is an offence of contravening an apprehended domestic violence order and that offence carries a maximum penalty of two years and or fifty penalty units.
It was conceded in relation to the last offence that it was not a serious offence either in context or seen objectively. In fact frankly, one might see it as a technical breach of the relevant provisions and could be contemplated as one of the least serious offences of its type.
The offences of the appellant particularly committed in October 2017, April 2018 and May 2018 were offences committed in breach of bail conditions. The offence committed on 11 April 2018 at Macksville was an offence committed in breach of bail conditions. These matters were obviously taken into account by the Magistrate when fixing the appropriate orders. The orders the Magistrate made coming back to the chronology of events in respect of the various offences committed in August 2017. That is, the two common assaults and the intimidation. The Magistrate dealt with the offences of possess shortened firearm, possess registered firearm and the common assault committed on 29 August 2017, as well as the intimidation matter committed on 29 and 30 August 2017, by way of Community Correction Order for a period of two years, noting the fact that the appellant was in custody upon his arrest in relation to the intimidation matter at Macksville on 11 April 2018.
In respect of one of the firearms offences, that is the 'not keep firearm safely' offence and the second common assault against the victim, the wife or former wife of the appellant, the Magistrate ordered the appellant to enter into a Community Correction Order for a period of twelve months. There were other orders made about forfeiture of the firearm and the like.
In respect of the contravene apprehended domestic violence order which I have earlier categorised as been far less serious than matters usually of this type and this circumstance, the Magistrate ordered the appellant to enter a Community Correction Order for a period of twelve months, each of these orders were subject to various conditions.
In respect of the intimidation on 11 April 2018 at Macksville, the appellant was ordered to enter into a Community Corrections Order for a period of eighteen months, with the conditions of supervision as applied in respect of the other matters. The appellant on the finalisation of these matters although the date is not abundantly clear from the cover sheet and I have not researched the charge sheets, was also placed on a final apprehended domestic violence order. I believe that was made on 26 March 2019. But the appellant was subject obviously to an interim order from the time that he was charged in relation to the assaults upon his partner. That apprehended domestic violence order had a number of conditions about not approaching particular people and the restrictions upon movement and was ordered to be in force for a period of five years from 26 March 2019.
I will come back just very briefly to the facts of each of the cases I have commented upon one of the matters. I will not dwell upon the objective facts, I have read both the statements of facts and the context in which they arise. The appellant at the time of the assaults against his wife or former wife as I understand it, the mother of six of his children, involved in respect of the first offence in time, the appellant grabbing a plastic plate on a bench in the course of an argument with his wife and then shoving the plate into the victim's chest causing the plate to break into pieces. Obviously an offence involving some force. The second assault in time involved the appellant grabbing the victim by the throat and pushing her backwards causing her to hit her hip on a bench and collide with a glass door and saying words to the effect, "If I thought I would get away with it I would kill you," and "I'm going to kill you, you fucking bitch."
The intimidation offence committed at about the time or shortly after the second assault in time involved the appellant saying to his wife or former wife, "You know how easy it would be for me to shoot you now and say it was an accident." The appellant then left the premises. The threats to the victim of course are noted to occur in the context of the appellant, as the later offences demonstrate, being in possession of a number of firearms. It is correct that he was entitled to be in possession of at least four firearms. But he was not entitled to be in possession of the shortened firearm. That is the shortened .22 calibre rifle. The police came to the premises where the appellant lived aware of the fact that the appellant had assaulted his wife and also that he was a registered firearm owner and on 25 October 2017, from the domestic premises, seized the four legal firearms which they are entitled to do in the context of domestic disturbance. The appellant indicated his possession, in circumstances I need not dwell upon, of an unregistered firearm which was found in a shed on the property in a shoe box. There was also a magazine and a box of .22 calibre bullets or cartridges, to be more specific, in the box.
The assaults upon the wife of the appellant were serious matters and obviously very frightening for her in the context of her knowledge of the appellant's possession of firearms. There is no evidence of substantial physical injury. The appellant was removed from the family home and as I said, subject to the interim domestic violence order which was breached by him forwarding a letter with a credit card, that had been addressed to the address where the appellant was living, to one of his sons and the matter being drawn to the attention of the appellant's wife.
With regard to the intimidation matter at Macksville, this involved the alleged intimidation of a police officer; I have seen the film of that matter and I do not want to make any other comment because there may be other investigations to be undertaken in relation to it. But in my view, accepting the offence was committed, (the appellant has pleaded guilty to it), the use of force by the police officer was quite disproportionate to the reality of the situation. The appellant on the film that I saw exchanged words with a police officer who was bigger than the appellant, substantially younger and fitter than the appellant. That is ignoring I hasten to say what I know about the appellant's medical issues particularly his heart issues, in circumstances where even if the words said by the appellant had caused concern to the police officer such as, leaving out the expletives, "You're not always going to be in uniform," and "Wait until you're out of uniform we're going to meet me and you." In any event it was arising out of that interchange with the police officer that the appellant was physically seized and was bail refused for a period of approximately five weeks. It is not for me to comment upon the circumstances of the refusal of bail. The appellant was on bail at the time of the commission of that offence. Threatening a police officer of course is a serious matter. The appellant would well realise that given his own background. However, on the other hand, this case was a complex case as I will certainly disclose shortly. It seemed to me with respect a significant act to refuse the appellant bail particularly in circumstances where being an ex-policeman placing him in custody placed him at real risk I would have thought for his safety, a matter about which the appellant is not unfamiliar. I do not regard that act of intimidation as serious as the Crown sought to submit. The word "serious" was used on a number of occasions. It is a word with a great many meanings. There are degrees of seriousness. Any offence brought against a citizen that carries the potential of a gaol sentence could be regarded as a serious offence. But the intimidation of the police officer occurred in broad daylight, outside a courtroom where the appellant was sitting on a chair, not standing up physically confronting the police officer in circumstances where the person intimidated was younger, as I said, bigger and fitter and in circumstances where the appellant did not offer any physical force whatsoever against the police officer. In the context of domestic intimidations, victims who are assaulted over a lengthy period of time, to be intimidated by their violent partner in the privacy of their own home, for example, with threats of death or serious injury, might present a much more serious example of that type of offence that the Court sees from time to time. In any event, I have noted all that has been put about the character of the offending and I agree certainly the assaults upon his partner could be seen as serious offences of their type.
The appeal to this Court proceeded on the basis that it was sought by the appellant two alternative courses of action in respect of all offences. It was sought that orders be made pursuant to s 32 Mental Health (Forensic Provisions) Act 1990. In relation to the apprehended domestic violence order currently in force it was sought to reduce the period of the effect of the order in the context of, as the Crown acknowledged, the opportunity towards the end of the expiry of any such order for the order to be renewed. It was also sought on behalf of the appellant to vary some of the conditions of the order removing three of the children who I was advised were respectively aged thirteen, eleven and nine from the terms of the order. Alternatively, or additionally, it was also sought to vary the terms of the order to make it very clear that all such orders restraining the appellant's access to his children be subject to any rulings made upon the matter by the Family Court of Australia or the Federal Circuit Court. Ultimately, I will not spend much time upon that aspect of the appeal. It seemed to me in the circumstances appropriate to vary the length of the order. The period of five years is in any context, but in far worse circumstances than this, a very significant period. Whilst I indicated in the course of submission that I did not think it appropriate having regard to the relationship of the primary person in need of protection to the children to remove the particular children from the orders, I indicated I saw the need for greater clarification of the supremacy of Family Court orders in due course. The Family Court being in a far better position to make a proper judgment of matters relating to the safety of the children. I will make the relevant orders accordingly as discussed.
But coming back to the appeals against the severity of the penalties imposed in relation to the criminal matters, in the alternative to an application for orders under s 32 of the Act it was submitted that I should make orders pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 with various conditions. I have already indicated to the parties that I propose to make orders under s 32. I have read most of the material before I came on the bench. I listened carefully to the submissions of the parties. I have considered those matters and the decision that I propose to formalise with the orders I make shortly was indicated to the parties bearing in mind interested parties had travelled a considerable distance. At that point I was a little unawares as to how I would be placed with the forthcoming trial that was supposed to start on Wednesday.
The terms of s 32 are that,
"If at the commencement or at any time during the course of the hearing of proceedings before a Magistrate it appears to the Magistrate that the defendant is or was at the time of the alleged commission of the offence to which the proceedings relate either cognitively impaired or suffering from mental illness or suffering from a medical condition for which treatment is available in a mental health facility but is not a mentally ill person, and that on the 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 can take into account the actions set out in s 32(2)(3)."
I pause to point out I have paraphrased the specific terms of s 32(1) of the Act. The actions the Magistrate may take include adjourning the proceedings, granting the defendant bail in accordance with the Bail Act 2013 and or making any such other order that the Magistrate considers appropriate (s 32(2)). The Magistrate may make an order dismissing the charge and discharging the defendant into the care of a responsible person unconditionally or subject to conditions or on the condition that the defendant attend on a person or at a place specified by the Magistrate for either assessment as to their condition or to enable the provision of support in relation to the defendant's cognitive impairment or unconditionally (s 32 (3)). There are various other provisions but particularly I note s 32(3)(d),
"If a Magistrate discharges a defendant subject to particular conditions under s 32 (3) and the defendant fails to comply with the condition within six months of the discharge the Magistrate may deal with the charges of the defendant had not been discharge.
Section 32 (4) provides that,
"A decision under this section to dismiss the charges against the defendant does not constitute a finding that the charges against the defendant are proven or otherwise."
I am mindful of the fact that notwithstanding that provision, consideration of s 32 can arise after a plea of guilty or before a plea of guilty has been entered.
The Magistrate heard an application for orders under s 32 of the Act. The Magistrate dismissed that application, convicting the appellant and making the sentencing orders that I have outlined earlier. I have read the transcript of the proceedings in that respect and particularly the Magistrate's reasons. This is not a case, as often is the case with appeals against conviction, where the advantage the Magistrate had at first instance of for example, observing witnesses and the like, is a relevant matter to be taken into account. There were no relevant "witnesses". The material before the Magistrate is the material available to me in the form of various reports and a judgment of a Judge of the District Court to whom I earlier referred his Honour Judge Cooper delivered on 2 February 2001. I have noted what her Honour observed in her judgment. My task is not to review her judgment. I am not sitting as the Court of Criminal Appeal may sit reviewing any decisions of mine or other judges of the District Court or the Supreme Court. I am required as is well known to form my own view of the matter. In any event it goes without saying that notwithstanding what the Court of Appeal said in the decision of Charara, this is not a case where the Magistrate enjoyed any particular advantage over me. Furthermore in fact I have more material than was available to the Magistrate including up-to-date medical report from a psychiatrist retained by the appellant, Dr Richard Furst who provided a report dated 22 May 2019. I have a further report from a psychologist, Mr John Nolan, which psychologist had also prepared reports for the Local Court proceedings. I also have I think more detailed submissions at least from the appellant's legal representatives than were available to her Honour and they were very helpful indeed as were the submissions of counsel for the Crown, all matters taken into account.
The operation of s 32 of the Act has been considered in a number of judgments most notably the decision of El Mawas (2006) NSWCCA 154, particularly at a number of paragraphs that I need not cite in detail, [75]-[80]. What flows from that judgment and other decisions of the Supreme Court and the Court of Appeal considering this legislation is that this Court, as was the Magistrate, (references to the Magistrate in the legislation obviously applying to myself at the current time) is required to make three decisions. Firstly, whether the appellant is eligible to be dealt with under s 32, sometimes referred to as the "jurisdictional question." There was no dispute in the conduct of the appeal before me by the Crown that the accused was eligible to be dealt with under the section as a person who was relevantly suffering from a "mental illness." The second matter was whether having regard to the facts that it would be more appropriate to deal with the appellant under s 32, and if so, the third question was "which of the actions set out in s 32(2) and (3) should be taken?"
As the very helpful written submissions of counsel for the appellant pointed out, the consideration of the second step requires exercise of a judicial discretion. In relation to that aspect of the matter, McColl JA in El Mawaz noted that the decision clearly calls for an exercise of subjective or value judgments in which no one consideration or no combination of considerations is necessarily determinative of the result. She noted, at [76], that it was a discretionary decision in which the judicial officer is permitted latitude as to the decision which might be made confined only however to the subject matter and object of the Act. As has been pointed out by Button J, in a later single Judge decision of the Supreme Court (DPP v Soliman [2013] NSWSC 346, at [56]) the exercise of the discretion obviously will depend very much on the circumstances of the case. McColl JA in her judgment in El Mawaz summarised the exercise of the discretion in a range of ways between [71]-[79] as requiring consideration of the fact that firstly, the section is a diversionary measure in which the Court is required to balance the public interest in diverting individuals suffering from a mental illness or mental conditions against facing "the full weight of the law." The Court must bear in mind the object of the Act, understanding that the community is to be protected from the conduct of such persons. But also, where appropriate, to divert a defendant from being exposed to sentence. It does not mean that the defendant is not exposed to any punishment because of the requirement on occasions to impose particular conditions. The discretionary judgment does require consideration of the seriousness of the offending conduct. However, the diversionary scheme is available to serious offenders as long as it is regarded in the Court's opinion is more appropriate than the alternative. No doubt a judicial officer considering the question will consider whether proceeding in accordance with s 32 will produce a better outcome for both the individual and the community. It must be fairly said it would have been within the experience of the Magistrate I would expect, who would have a great deal more involvement with the consideration of this section, and it is certainly within my experience that more serious offences, albeit those capable of being dealt with summarily, may still involve exercise of the powers under s 32 and the relevant discretion that can be exercised. These matters are all clearly self-evident from the legislation and the decisions that have interpreted it.
If I could just make a general comment about the quality of the material available to me. It is very rare indeed, not just in s 32 matters but in sentencing generally, to see such a detailed history of assessment and treatment of an individual. Not only has the medical treatment and assessment of this particular individual been the subject of consideration by a range of experts over a twenty year period, in fact longer than that, the circumstances of this particular individual have been the subject of judicial comment in the action for which the appellant was granted substantial damages in 2001 and in observations of Wood J in the Royal Commission into the New South Wales Police Service where the appellant gave evidence.
To start at the beginning, however, and to put everything in some sort of context, both in considering the factual circumstances of the offender, the offender's possession of firearms, the circumstances of his conduct towards his wife and his conduct towards the police officer in 2018, I note the appellant became a police officer on 3 April 1978. He was nineteen years of age. His father was a police officer who rose to the rank of Inspector of Police. In circumstances which are set out in considerable detail by Judge Cooper, the appellant in 1985 was requested to provide information to an investigation in relation to a fellow police officer at a country police station. Certain enquiries were undertaken over a period of time. When it became known that the appellant had assisted Internal Affairs, he was the subject of particular conduct. He was ostracised. He was transferred to a small police station to be sent away from other police officers. He was the subject of various threats.
In the judgment of Judge Cooper, his Honour noted at p 14,
"The totality of the evidence comfortably satisfies me on the balance of probabilities that by 12 April 1987 at the latest, the plaintiff was in considerable fear for his life. He was well aware of the threats to his life."
He made a finding that the appellant's transfer to a smaller police station was "punitive" and he was taken away from where he could be protected from those who would harm him. It was claimed in official reports that he was transferred to Copmanhurst for his own "protection." He had a breakdown in his marriage in 1988 and he commenced his relationship with his partner, who is the victim of two of the assault offences, apparently in 1992. They married in 1997 and as I said, they had six children together. Wood J made this observation about the treatment of the appellant by the New South Wales Police Service as it was then known,
"It can only be said that it was utterly intolerable that this is happening at this stage. The position is perfectly plain; the present witness has been brought here without any suggestion of impropriety or adverse comment being made against him. It would seem despite the protestations of the service and the associations, he has not had any support. On the contrary, he has been made to feel a pariah ... it seems to me despite the observations made in the past, this is the kind of experience that we are getting when we are seeking to speak to honest police. There is a great deal of fear in talking to us and the impression is if they do talk to us, they are going to be harassed or frozen out or given the silent treatment. The silent treatment is as bad as actual harassment."
I will come back to various diagnoses which go to the agreement between the parties as to the jurisdictional issue but I wish to just briefly reflect upon Judge Cooper's judgment. It is instructive to read this judgment, all 124 pages of it. He set the judgment out in a very ordered fashion and I will note some of the headings of the chapters in the judgment.
"The plaintiff's life is threatened." "THE IMPACT ON THE PLAINTIFF OF THE THREAT UPON HIS LIFE," "THE DEFENDANT'S BREACH OF ITS DUTY OF CARE TO THE PLAINTIFF," "THE LACK OF SUPPORT FROM GRAFTON AND LISMORE AFTER CEASING WORK ON 1 MARCH 1995," "THE EFFECTS OF THE ABOVE INCIDENTS UPON THE PLAINTIFF'S HEALTH," "THE CONTINUING DIFFICULTIES FOR THE PLAINTIFF WHEN AT GRAFTON," "NO HELP OF ANY VALUE FROM THE INTERNAL INFORMER'S PROGRAM - TOO LITTLE TOO LATE,"
and so it goes on. His Honour reflected upon the detail of the medical evidence, some of which I will summarise.
He concluded that the State of New South Wales which was the defendant, but in effect the New South Wales Police Service or Force, had failed in its duty of care towards the appellant in twenty-five different ways. The particulars of liability are set out at pp 116-119 of the judgment. They are chilling to say the least and there is clearly shown, by reference to those particulars and the medical evidence, the reason for the learned Judge determining the injury to the appellant and that, in the circumstances, substantial award should be made to him for general damages, a substantial award should be made for lost wages, over $100,000 and a substantial award should be made for "future economic loss" totalling $375,000. I wish I had the time to read onto the record the particulars of what his Honour found in relation to liability. The basis for this can be seen in the conclusions of various experts notwithstanding an attempt by the defendant at the proceedings to produce experts that sought to diminish the appellant's condition. A treating doctor of the appellant, Dr Lee, psychiatrist, now retired as I understand it in 2008, placed the appellant back in 1989 on antidepressants. In 1996, the appellant consulted a Dr Straum at the request of the police service. That report, as with many other reports, have been provided to me. Dr Straum noted the appellant's position as a "Whistle blower." He concluded,
"I think there is little doubt that as a result of constant harassment and difficulties within the police service, Senior Constable Wheadon developed symptoms which are concomitant with a diagnosis of mixed depression with androgynous and reactive features or if you will, a chronic adjournment disorder with anxiety and depressed mood ... in such an illness there is always personality changes including paranoia, anger, lack of trust and social withdrawal."
He was guarded as to the prognosis. He went on to say,
"One of the features of reactive depression can be poor response to the classical antidepressant medications. This was the case in (the appellant's) illness. Other features of his illness were that he had a tendency to externalise feelings rather than internalise them. In major depression there is a tendency for despair and self-blame. In the case of reactive depression there is anger, aggression, paranoia and violence."
Dr Robert Delaforce reported on 2 October 1999 that the appellant was in the "highest range" of major depression. He said that there was a diagnosis of recognisable mental disorders including major depressive disorder, recurrent, mild, chronic, post-traumatic stress disorder, mild, chronic, social phobia, specific phobia and alcohol dependence with psychological dependence. I point out in 2001 as I have said, Judge Cooper found the State of New South Wales liable for the damage done to the appellant, concluding that the appellant had suffered relevant psychiatric injury caused by one of the many stressors placed upon the appellant in the course of his police service.
There were other features of the matter that I have borne in mind. Sadly, the appellant's son David died as I understand from a form of skin cancer at the age of eighteen in 2003. The appellant has had heart difficulties including a diagnosis of rapid atrial fibrillation in 2004 and is still receiving extensive treatment. In fact, it is pointed out that shortly after the commission of the early offences with which I am concerned the appellant had heart surgery. In 2013, Dr Jankovic reported that the appellant's access in regional New South Wales to treatment options was limited. That in the appellant's case there was a "longevity of symptoms in conjunction with physical health issues and age." He concluded by reference to Dr Delaforce's earlier report from 1998,
"Severity of Mr Wheadon's depressive symptoms and symptoms of post-traumatic disorder (sic) appear to be recurrent and intensity has increased despite his longstanding alcohol abstinence,"
and that stressors upon him had had significant effect upon his relationships. Dr Wenden in April 2013 reflected upon the then current circumstances of the appellant, the sleep disturbance, the anger about his treatment within the Police Force and the fact that his career had been cut short, his feelings of inadequacy, the continuing character of his condition notwithstanding the fact that he was no longer within the police force. In 2013 the appellant was the victim of an assault. But the person or people who assaulted him were acquitted I note. He suffered substantial injury. There was a decline in his physical health over the period of time between 2013 to 2017. As I pointed out, the appellant had a pacemaker implanted on 1 November 2017, a matter that no doubt in its likely occurrence causing further stress for the appellant. In Mr Nolan's report of 30 January 2019, admittedly Mr Nolan being a psychologist not a psychiatrist, he opines that the various reports that he has seen and his understanding of the situation offers a link between the appellant's psychiatrically reported mental illnesses and the onset of atrial fibrillation or AF. So far as the appellant's treatment is concerned, on 8 August 2018, he commenced treatment with Mr Nolan. I have read the various reports therein contained.
The report of Dr Furst postdates the appearance of the appellant at the Local Court so it is additional evidence to that available to the Magistrate. The Magistrate I hasten to say had available to her various reports that I have earlier referred to as well as the judgment of his Honour Judge Cooper in his learned way summarising in greater detail than I can at this time the medical evidence. Dr Furst's report notes the background as I have summarised it. He reflects upon various reports including reports from Dr Lee, now retired of course, from 1995 and 2001, Dr Straum's report from 1997, Dr Delaforce's report from 1998, a Centrelink assessment which I have available to me from August 2012, the reports of Dr Jankovic and Dr Wenden from April 2013, cardiology reports and psychological reports from Mr Nolan. He reflects upon the history of the offences and summarises the various reports. He reflects upon the psychological testing of Mr Wheadon and ultimately concludes that the appellant met criteria at the present time for the following mental disorders; recurrent major depressive disorder and post-traumatic stress disorder. He noted in relation to major depressive disorder that it was an illness characterised by pervasive low mood, low self-esteem, loss of interest or pleasure in normally enjoyable activities, it is a disabling condition that has an adverse effect on a person's ability to work or study, family life, sleeping and eating habits and general health. He notes that the various symptoms have been present over a period of thirty years. With regard to the post-traumatic stress disorder, he notes it is a severe and chronic anxiety disorder that develops following exposure to one or more traumatic events. It evokes various emotional reactions and creates debilitating symptoms. It is not limited of course to people exposed for example to war such as the Vietnam War or the 'America War' as the Vietnamese call it, and the like. He expressed the opinion that there was a causal connection between the criminal conduct with which I am concerned and the conditions as he diagnosed it. He noted the conditions from which the appellant suffers are such that such persons with these diagnoses are prone to irritability, negative thinking, poor coping under stress, erosion of interpersonal relationships. He noted the mood swings, poorly controlled anger, fear of rejection or abandonment and the fact that the appellant had not responded well to treatment by, particularly, antidepressant medication which twenty years earlier was indicated to be not appropriate or effective given the character of his depressive illness. He opines upon the relationship between these matters and the presentation of the prisoner in the commission of various offences.
So far as the intimidation of the police officer on 11 April, he opined, putting aside any "actions on the part of the officer," the need to consider also the appellant's view of a long history of real and or perceived poor treatment by police towards him. Further it was opined that his "overreactions anger and irritability at that time was likely a product of his poorly controlled depression and PTSD." He expressed the fact that these conditions were mental conditions for which treatment was available at a mental health facility and in the context of the available material to him and the current treatment of the appellant by a general practitioner, Dr Nepalati, set out the detail of a Treatment Plan which I have taken into account.
As I said, I do not propose to dwell upon Mr Nolan's assessment. It is in some respects in terms of clinical assessment, far more detailed than Dr Furst's. But Dr Furst has taken into account that material in coming to the conclusion that he has reached and I bear in mind the limitations of a psychologist to make relevant diagnoses.
It is in these circumstances that I come to a consideration of the submissions of the parties. I do not propose to set them out in detail but there are some other relevant matters that emerge from the evidence that have been adverted to in the submissions that I should note. First of all, the appellant at the time of the commission of the offences, certainly at the time of the commission of the first offence, had not committed any prior criminal convictions. The course of offending of course occurred over a period of time when the appellant was, as I would calculate it, either fifty-eight or fifty nine years of age. It occurred in the context of the mental health and physical health matters to which I have made reference. Various submissions are made by learned counsel for the appellant in relation to the effect of the medical evidence and the history of the appellant's employment and his treatment by the New South Wales Police Service, particularly officers of the New South Wales Police Service. There is no doubt by reference both to Judge Cooper's findings and the opinions expressed by various doctors that there is a clear causal relationship between the mental condition of the appellant and the matters which bring the appellant before the Court today.
So far as the issue of the public interest is concerned, noting that the offences are not trivial, it is submitted that the public interest entails a recognition of the debilitating effects of the appellant's mental illness and or mental conditions. It is a relevant factor in the sentencing exercise in a range of ways. Thus, it would not be appropriate in the circumstances to have such a consideration of denunciation and, particularly, general deterrence that would be appropriate for offending of this type, absent any mental illness. Furthermore, I am required to consider, as the Magistrate no doubt considered, the time the appellant had spent in custody and the circumstances in which he came into custody with a background of being a police officer. I have taken into account the facts of the matters. It is submitted ultimately that by regard to the tests that I am required to consider arising under s 32 and the interpretation of the section, I should exercise the discretion that is available to me. There are further submissions made in relation to s 10 Crimes (Sentencing Procedure) Act 1999 but whilst I have taken those into account, there is no need for me to analyse those in the context of the conclusion that I have reached about the matter.
The Crown's submissions as I earlier pointed out included a concession as to the existence of the first matter. The factual issue that I am required to determine. However, the Crown submitted that I should not exercise any discretion required under s 32 having regard to the "public interest" in dealing with the matter according to law. In that regard, the Crown made submissions about the seriousness of the offending bearing in mind I take into account, as the Crown submitted, the fact that there is a course of offending and various offences were committed whilst on bail. There is to be taken into account in that regard the period of time over which the offending occurred, I have already made comment about that circumstance.
A particular submission made by the Crown was the length of any restraint of a conditional discharge under s 32 would be insufficient in the circumstances and that the orders made by the Magistrate providing for a longer period of supervision would be more in accordance with the public interest. He also made the submission in relation to Mr Nolan's suggestion of "Cognitive Behaviour Therapy", a phrase often used by psychologists as an appropriate method of treatment, that Dr Furst was "circumspect" about this. Quoting from Dr Furst's report at p.10, noting Mr Nolan's recommendation and confidence in psychological therapy to challenge negative thoughts,
"In this respect, I would be more circumspect about Mr Wheadon's prospects of recovery, especially given his limited response to all previous therapeutic measures including antidepressants medication and psychiatric psychological therapy over the last thirty years and his obvious functional impairment, coupled with relatively poor physical health."
I have noted that observation. But even the doctor, having himself made that observation, ultimately in his report, particularly at pp 13-14, noted this,
"Treatment for depression usually involves a combination of psychological therapy and medication. Longer term psychotherapy and Cognitive-Behaviour Therapy (CBT) which seeks to identify negative or dysfunctional thoughts and behaviours and place them with more positive ones may be indicated to overcome problems of anxiety, depressive symptoms, managing stress, problem solving and negative thoughts."
He made some further observations about these types of therapy and ultimately concluded, having regard to all relevant factors, that the appellant be subject to a treatment plan that includes care of Mr Nolan or his delegate and engaging in CBT and other psychological therapies. So notwithstanding his circumspection ultimately his conclusion is to recommend that course of action.
As I said, the Crown in its submissions did not dispute the medical evidence. There was no medical evidence called by the Crown to contradict what had been put before the Magistrate in reality or to contradict what had been additionally observed in Dr Furst's report and Mr Nolan's further report. The Crown did not dispute the causal connection between the offending and certainly there was no challenge to the fact that there were existing conditions before, during and after the relevant offending. Of course I am mindful of the fact, being alert to the realities of the world, that the breakdown of the marriage of the appellant with his wife no doubt involved a great many things, not just matters solely referrable to the appellant's medical conditions. I fully appreciate the circumstances within marriage of personalities changing and other factors impinging upon a relationship. But there can be no doubt, based upon the evidence available to me, of the substantial contribution of these contextual issues to which I have referred or matters that are directly contributable. There is thus, arising out of the submissions of the parties particularly addressing the Crown's submission as to the matter, the relevant causal connection to be taken into account.
So far as the Crown's submission concerning the limited application of any restraint under an order pursuant to s 32, I bear in mind that the fact that the appellant has in reality been under restraint in various ways, albeit at times breaching bail, since October 2007. That restraint has either included bail conditions, the terms of interim or final apprehended domestic violence orders and of course, the restraint of the relevant Community Correction orders or Community Release Orders to which I made earlier reference. The reality is that should I make an order under s 32 whilst it is effectively in place for a period of six months, it is the case that by the time that period will have expired since this affair commenced in October 2017, the appellant will have been under some form of restraint for a period of over two years and three months. I bear in mind in the context of considering the public interest and particularly the public interest, as it might be expressed in the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999, that if I was sentencing the appellant according to law, as no doubt the Magistrate took into account, I would be required in the context of decisions such as Hemsley, Engert and the summary of relevant principles in the 2010 decision of De La Rosa in this particular case to give far less weight to general deterrence with no requirement to increase the weight to be given to personal deterrence. I would be diminishing the "moral culpability" of the appellant in circumstances where it would be clearly the case that this is not a matter that requires the imposition of terms of imprisonment. In any event, I note in that regard that the Magistrate who had refused him bail, but then sentenced him taking into account the fact that he had spent a month in custody, determined that he should be subject to conditional liberty within the community. I note also that the appellant will be the subject of restraint under the terms of the apprehended domestic violence order for a further eighteen months or so from the current date, even with the variation to the length of the apprehended domestic violence order that I have contemplated. This is to be noted of course in the circumstance that prior to the commission of the offences in October 2017 the offender was a person without prior charges or convictions. So in considering the issue of the public interest, noting the orders that were made by the Magistrate that included supervision in the community, and did not involve term of imprisonment, having regard to the need to consider the purposes of "sentencing" as they might arise if the matter were dealt with according to law, I have concluded that I should exercise the discretion available to the Court. I should pursue the course recommended by Dr Furst by placing the offender on a conditional discharge that involves supervision in the manner identified in the Treatment Plan set out in Dr Furst's report of May 2019.
With regard to the apprehended domestic violence order, for abundant clarity, as I have said, I propose to reduce the force of the apprehended domestic violence order from five years to two years. It commenced obviously in March 2019, it will be in force at this stage under 25 March 2021 and I propose to amend order 11 to state as follows,
"Orders 3, 6, 7 and 9 are subject to Family Court or Federal Circuit Court orders or as agreed in writing between the defendant and (the person in need of protection). The order for protection of GW is in relation to condition 1 only."
That is an existing part of order 11 as well.
Thus I will now turn to the orders.
Now just one thing Madam Crown, sir, in relation to the terms of the section, so far as the terms of s 32 (1) should the order refer to a mental illness or a mental condition Madam Crown? In the draft order I have given you I have referred to the defendant suffering from a mental condition but whichever way one looks at it, he's not a "mentally ill person" within the meaning of s 14 of the Act but he may have a mental illness under s 4 of the Act as that term is defined.
WADHERA: Sorry, if your Honour could just repeat the initial part of the question.
HIS HONOUR: Yes, s 32 refers to the existence of either a mental illness or a mental condition for which treatment is available in a mental health facility but is not a "mentally ill person," and just for abundant caution, and I should've said this in my judgment, I've taken into account the definition of mental illness as set out in s 4 (1) of the Mental Health (Forensic Provisions) Act 1990. I've also taken into account the definition of a "mentally ill person" set out in s 14 of that Act. The appellant is not a mentally ill person under that definition but he may either have a mental illness and or a relevant mental condition. I've described it as a mental condition in the order; is that sufficient for the purposes of the order Madam Crown?
WADHERA: Your Honour I would think so.
HIS HONOUR: Would you think so sir?
KUMARASINHE: Absolutely.
HIS HONOUR: I know you're new to the matter but that's the way I've described it, I just wanted to put that on the record.
KUMARASINHE: Thank your Honour. Your Honour I hesitate to interpose or interrupt. Before the matter is completed in relation to the final apprehended domestic violence order I meant to raise this; in terms of order 9 there is a condition that he not go within six kilometres--
HIS HONOUR: That wasn't raised with me at all, none of that was raised with me.
KUMARASINHE: I'm sorry your Honour if I--
HIS HONOUR: The main matters that were raised with me were deleting the children, three youngest children as I would understand it although I don't have a full chronology of the six children from the order, I declined to do that in argument because I saw that the person in need of protection being the primary carer of the children bearing in mind she would have most regular contact with the children, may be compromised and it seemed to me with respect, I'm not the Family Court of Australia. The Family Court of Australia and the Federal Circuit Court of Australia are much better qualified than I to make decisions about the welfare of the children.
KUMARASINHE: Absolutely your Honour--
HIS HONOUR: But the other matter was never raised with me and I'm not prepared to deal with it now. Mr Bell and I discussed those matters and I told him what I was prepared to do and the discussion more or less came to an end.
KUMARASINHE: Sorry your Honour, I don't wish to take that matter any further in terms of the distance--
HIS HONOUR: It wasn't argued.
KUMARASINHE: As your Honour pleases.
HIS HONOUR: I had no specific argument about it, I wasn't alerted to it. I'm aware of the condition, I've read all the conditions, I went through them actually with Mr Bell, I had the actual ADVO in front of me and we turned our attention to the wording of condition 11 particularly in the context of what I said in argument about the inappropriateness of me interfering with the conditions relating to the youngest children as they were identified in submission.
KUMARASINHE: Yes but just in relation to Lawrence he instructed that one part of Lawrence if it can be reduced by four kilometres as opposed to six then the property is closer from one part than as to the other part of Lawrence so all he's asking whether that could be a four kilometre--
HIS HONOUR: Well I don't know the geography of it.
KUMARASINHE: They're just my instructions in terms of the length of the place. I know where Lawrence is but--
HIS HONOUR: I've never been to Lawrence that I can remember so I'm completely unfamiliar with the area but it wasn't a matter particularly raised with me. Is the person in need of protection in court?
WADHERA: Your Honour just in relation to my friend's point I understand that she is to answer your Honour's question but in relation to the matter my friend's raised my understanding is that this is a matter listed for judgment. Your Honour has said that wasn't ventilated in argument--
HIS HONOUR: But I'm just wondering can this be sorted out now you know it costs a vast amount of money to the state for us to be interfering in the arguments between individuals, it costs a vast amount of money, that's what the state must bear and I'm just wondering do you want to get some instructions whether I can do that?
WADHERA: I will need time to take instructions on it your Honour.
HIS HONOUR: Well I'll grant you time but I'll make the final orders in relation to the criminal offences and then I'll come back on the bench after you've spoken to the person in need of protection but it wasn't a matter articulated whether it was an oversight on it might've been an oversight on the part of counsel for the Crown or the accused but you're right, it was not articulated, I've already said that I've said that three times already I don't need to be reminded yes what do you want to say?
KUMARASINHE: Yes thank your Honour I just thought I'd -
HIS HONOUR: Right. Well in relation to the criminal matters, I make the following orders; Convictions and sentencing orders of the Magistrate are quashed. I am satisfied firstly the defendant is suffering from a mental condition for which treatment is available in a hospital but is not a mentally ill person within the meaning of the Mental Health Act. On an outline of the facts alleged in the proceedings and in such other evidence as I consider relevant it would be more appropriate to deal with the defendant in accordance with the provisions of Pt 3, Mental Health (Forensic Provisions) Act 1990, and otherwise in accordance with law. I make the following order; the defendant remain under the care of Dr Sam Nepalati of the Lake Cathie Medical Centre or delegate submission to conditions of the following treatment plan; firstly that the appellant attend upon appointments with that doctor or delegate at a frequency as directed by the doctor, monthly in the first instance pursuant to a mental health plan, secondly, he remains under the care of Mr John Nolan, clinical psychologist at Port Macquarie Psychology or delegate with a view to engaging in further specific therapy as I have set out in the order, he attends upon appointments with Mr Nolan, or delegate, at a frequency as required by the psychologist, fortnightly in the first instance, he accepts referral to a consultant psychologist pursuant to the mental health care plan, to review treatment of his depression and PTSD probably every three months, he accepts medication as directed by his treating doctors as clinically indicated, he remains under the care of his cardiologist at Port Macquarie or delegate. These orders are in place for a period of six months from 20 August 2019. Should the defendant fail to comply with any of the conditions of this order, the defendant may be called to appear before the Court following notification by the treatment provided to the Court or the Community Corrections Service of the non-compliance and the offences will be dealt with as if the defendant had not been discharged pursuant to s 32 of the Act.
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Decision last updated: 08 November 2019