Citation: EWART, Warren James v R [2009] NSWDC 403
Court: District Court of New South Wales
Date: 18 November 2009
Judge(s): Cogswell SC DCJ
Background
The appellant had been sentenced by a Bankstown Local Court magistrate to a cumulative total of six months imprisonment for three separate offences of driving whilst disqualified, committed between March and June 2009. He had a significant prior record for driving whilst unlicensed, and had repeatedly disregarded court orders and legislative disqualifications. On appeal to the District Court, the sentence fell to be determined afresh rather than reviewed for error.
Psychiatric evidence was tendered on appeal in the form of a report from Dr Stephen Allnutt, a psychiatrist, diagnosing the appellant with major depressive disorder. The report identified the onset of the condition as 2006, coinciding with the breakdown of an eighteen-year relationship, false accusations of sexual abuse involving his children during acrimonious separation proceedings, and the loss of his business and assets.
On the basis of that psychiatric evidence, the appellant's solicitor applied for an adjournment under section 32 of the Mental Health (Forensic Provisions) Act 1990, seeking to divert the proceedings from the criminal justice system to the mental health system rather than proceed to sentence.
Legal Issues
- Whether the appellant was suffering from a mental illness within the meaning of section 32 of the Mental Health (Forensic Provisions) Act 1990, both at the time of the offences and at the time of the proceedings.
- Whether it was more appropriate to deal with the appellant under Part 3 of the Mental Health (Forensic Provisions) Act 1990 than to sentence him in the ordinary course.
- Whether an adjournment under section 32(2), a dismissal under section 32(3), or neither course was appropriate in the circumstances.
- How the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999, particularly rehabilitation and community protection, intersected with the section 32 power.
Decision
The District Court accepted that the appellant was suffering from a mental illness at the time of the offences and at the time of the proceedings, consistent with Dr Allnutt's diagnosis of major depressive disorder. The court noted that the commencement of the appellant's criminal history in 2007, after his personal circumstances deteriorated in 2006, was consistent with the psychiatric evidence. Although the pre-sentence report had assessed him as unsuitable for community service or periodic detention, the psychiatric evidence provided a different pathway.
The court applied the balancing exercise described in DPP v El Mawas (2006) 66 NSWLR 93, which requires weighing the public interest in offenders facing the full weight of the law against the public interest in treating individuals suffering from relevant mental conditions. The DPP's representative conceded that an adjournment under subsection (2) was appropriate but opposed outright dismissal of the charges under subsection (3) on the basis that this would not meet community expectations around punishment.
The court agreed with the DPP's position. An adjournment rather than a dismissal was the appropriate order at this stage. The court noted that two sentencing purposes identified in section 3A of the Crimes (Sentencing Procedure) Act 1999, rehabilitation and community protection, were capable of being served by directing the appellant into the mental health system. The proceedings were adjourned to March 2010, with bail granted on conditions requiring good behaviour, notification of any change of address, and compliance with Dr Allnutt's treatment plan. The court indicated that the ultimate outcome at the adjourned hearing would depend on how the appellant progressed under the plan.
Orders Made
- Proceedings adjourned pursuant to section 32(2) of the Mental Health (Forensic Provisions) Act 1990 to Friday, 5 March 2010 at Parramatta.
- Conditional bail granted under the Bail Act 1978 on the following conditions:
- The appellant be of good behaviour.
- The appellant notify the court registrar of any change in residential address.
- The appellant comply with the treatment plan set out by Dr Allnutt in his report dated 11 November 2009.
- Transcript of proceedings to be prepared and provided to the parties and the court by 26 February 2010.
Key Takeaways
- Section 32 of the Mental Health (Forensic Provisions) Act 1990 confers a discretion to divert a defendant away from sentence and into the mental health system, even where the offending is serious and the prior record is significant.
- The District Court confirmed that the balancing exercise from DPP v El Mawas requires weighing the public interest in criminal accountability against the public interest in treating defendants with relevant mental conditions; neither interest automatically prevails.
- A section 32(2) adjournment and a section 32(3) dismissal are distinct outcomes: an adjournment preserves the proceedings and allows the court to assess progress before making a final determination, while a dismissal ends them entirely.
- Under section 3A of the Crimes (Sentencing Procedure) Act 1999, the purposes of rehabilitation and community protection can support a section 32 diversion rather than conventional sentencing, even where other non-custodial options such as community service or periodic detention have been assessed as unsuitable.
- Where a section 32(2) adjournment is granted, the court may impose bail conditions requiring compliance with a psychiatric treatment plan, with the expectation that evidence of compliance will be placed before the court at the adjourned hearing to inform the final outcome.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 (including subsections (1)(a), (2) and (3))
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)(a)
- Bail Act 1978 (NSW)
Cases:
- DPP v El Mawas (2006) 66 NSWLR 93 (New South Wales Court of Appeal)