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Local Court 30 January 2008

Police v Deng

[2008] NSWLC 2

Traffic & driving
NEGLIGENT DRIVING OCCASIONING DEATH

Citation: Police v Deng [2008] NSWLC 2
Court: Local Court of New South Wales (Downing Centre)
Date: 30 January 2008
Judge(s): Magistrate I Barnett

Background

The defendant was charged with negligent driving occasioning death under s 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999, a summary offence carrying a maximum penalty of 30 penalty units or 18 months imprisonment for a first offence. The charge arose from an incident on 27 March 2007, in which she allegedly drove a motor vehicle onto a footpath in Kogarah between 11:00 am and 11:02 am.

The defendant was a Sudanese refugee with a documented history of serious trauma. She had witnessed the murder of her husband and suffered significant losses before resettling in Australia, and had been a client of the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) since 1998.

Following the incident, she was also admitted to St George Hospital. Her legal representatives applied to the Local Court under s 32 of the Mental Health (Criminal Procedure) Act 1990, seeking to have the charge diverted and dealt with under the mental health legislative scheme rather than through the ordinary criminal process.

  • Whether the defendant was eligible for diversion under s 32(1)(a) of the Mental Health (Criminal Procedure) Act 1990, specifically whether she was suffering from a mental illness or condition for which treatment was available.
  • Whether it would be more appropriate to deal with her under s 32 than according to the ordinary criminal law, having regard to the alleged facts and the available evidence.
  • Which of the orders available under s 32(2) or s 32(3) was appropriate in the circumstances.

Decision

Magistrate Barnett structured his decision around the three-stage framework identified by McColl JA in DPP v El Mawas (2006) 66 NSWLR 93: first, whether the defendant was eligible; second, whether diversion was more appropriate than ordinary criminal process; and third, which available orders to make.

On the first question, the parties agreed that the defendant was eligible under s 32(1)(a). That agreement was grounded in expert reports from psychologist Julie Savage of STARTTS, forensic psychiatrist Dr Bruce Westmore, and psychiatrist Dr Andrew Pethebridge of St George Hospital. Those reports documented the defendant's longstanding trauma symptoms and her deteriorating mental state following the accident.

On the second question, Magistrate Barnett was satisfied that it was more appropriate to deal with the matter under s 32 than through the ordinary criminal process. The medical evidence indicated that the defendant did not require inpatient treatment but would benefit substantially from outpatient treatment over a period of 10 to 16 months, including ongoing sessions with STARTTS and engagement with the community mental health service at Rockdale.

The Magistrate granted the application and indicated that a formal treatment plan, encompassing the recommendations across the medical reports, would be drawn up for his approval and placed on the court file once finalised.

Orders Made

  • The s 32 application was granted.
  • A treatment plan incorporating the recommendations from the relevant medical reports was to be drawn up for the Magistrate's approval and placed on the court file.
  • The Magistrate recommended to the Roads and Traffic Authority (RTA) that the defendant not be reissued with any learner's permit until she could demonstrate that the matters raised in the medical reports would no longer affect her ability to drive, and in any event not for at least three years.
  • If the defendant still held a learner's permit, the Magistrate recommended the RTA take immediate steps to cancel it on medical grounds.
  • The Registrar was directed to provide the RTA with a copy of the judgment and the reports of Dr Westmore, Ms Savage, and Dr Pethebridge.

Key Takeaways

  • The Local Court confirmed that s 32 of the Mental Health (Criminal Procedure) Act 1990 is available in proceedings for serious summary offences, including negligent driving occasioning death under the Road Transport (Safety and Traffic Management) Act 1999.
  • Following DPP v El Mawas, the court applied a three-stage analytical framework: eligibility, comparative appropriateness, and selection of orders. Magistrate Barnett expressly adopted that structure in delivering his reasons.
  • Where the parties agreed on eligibility and the medical evidence demonstrated both a treatable mental condition and an available outpatient treatment plan, the court found the threshold for diversion to be satisfied.
  • A s 32 diversion does not necessarily result in unconditional discharge. The orders made here were conditioned on compliance with a structured, clinician-supervised treatment program.
  • In addition to the mental health orders, the Magistrate exercised a discretion to make recommendations to the RTA regarding the defendant's driving entitlements, reflecting the court's capacity to consider public safety consequences alongside the therapeutic outcomes of diversion.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(1)(a)
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 31, 32
- Mental Health Act 1990 (NSW), Chapter 3
- Bail Act 1978 (NSW)

Cases:
- DPP v El Mawas (2006) 66 NSWLR 93
- Confos v DPP [2004] NSWSC 1159
- Mantell v Molyneux (2006) 68 NSWLR 46
- R v Israil [2002] NSWCCA 255