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Local Court 22 December 2017

R v HW

[2017] NSWLC 25

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW FITNESS TO PLEAD OR BE TRIED COGNITIVE IMPAIRMENTS SEXUAL OFFENDING LOCAL COURT JURISDICTION APPROPRIATE ORDER

Citation: R v HW [2017] NSWLC 25
Court: NSW Local Court
Date: 22 December 2017
Judge(s): Magistrate Huntsman

Background

The accused, HW, is a young adult with significant cognitive impairments, including an intellectual disability, mild autism, language disorder, and schizophrenia. Police facts described him as having the mental capabilities of a child aged four to nine years. He lived in a supported group home and received 24-hour care from a disability services provider.

HW faced five sets of charges arising from incidents between October 2016 and August 2017. The charges included two counts of assault with an act of indecency (involving women unknown to him, on a street and on a train), common assault, stalking and intimidation, and property damage. The assault and property damage charges involved carers at his residence. HW was on bail throughout the proceedings.

The defence submitted that HW was unfit to plead. The prosecution initially opposed that position but conceded unfitness after obtaining further medical evidence. The parties then disagreed on what order the Local Court should make, with the defence seeking a permanent stay of proceedings and the prosecution seeking a diversion order under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA).

  • Whether HW was fit to plead or be tried.
  • Whether the Local Court has jurisdiction to determine fitness to plead.
  • If HW was found unfit, what order was available to the Local Court: discharge, permanent stay, or some other order.
  • Whether the Local Court has jurisdiction to make a section 32 order (diverting proceedings for mental health or cognitive reasons) where a defendant has been found unfit to plead.

Decision

Fitness to plead: The Magistrate found that HW was not fit to plead, accepting the medical evidence that had ultimately been agreed upon by both parties. The fitness standard applied was that established in the Victorian case of R v Presser [1958] VR 45, which has been adopted in NSW: a defendant must be able to understand the nature of the charge, follow proceedings, and give adequate instructions, among other requirements.

Local Court jurisdiction to determine fitness: The Magistrate confirmed that the Local Court does have jurisdiction to determine fitness to plead, even though the MHFPA does not expressly confer that power on the Local Court for summary proceedings in the way it does for higher courts. The power was held to derive from the court's inherent authority to ensure proceedings are conducted fairly.

Available orders following a finding of unfitness: The Magistrate addressed whether a permanent stay or a section 32 order was the appropriate response. A permanent stay is a discretionary remedy reserved for cases where no other means can remedy unfairness; it was not considered appropriate here given other options existed. The Magistrate concluded that, on the facts, the appropriate order was neither discharge nor permanent stay.

Section 32 jurisdiction where defendant is unfit: The central question was whether section 32 of the MHFPA, which allows a court to divert a defendant with a cognitive or mental health impairment away from the ordinary criminal process, can be applied when the defendant has been found unfit to plead. The Magistrate held that it can, reasoning that section 32 is directed at defendants with mental health conditions or cognitive impairments and that its purpose of ensuring appropriate support and reducing reoffending risk is not negated by a concurrent finding of unfitness. The expert evidence of Ms Zipparo informed recommendations for a behavioural management plan and sexual education program tailored to HW's needs. The Magistrate adjourned the proceedings under section 32 to allow such a plan to be developed, and directed that the reasons be provided to the Public Guardian and HW's residential care provider.

Orders Made

  • Proceedings adjourned pursuant to section 32 of the MHFPA to 11 April 2018, part heard before Magistrate Huntsman.
  • The Registrar of Liverpool Local Court directed to provide a copy of the reasons to the Office of the Public Guardian (for the attention of the appointed guardian) and to the current residential care provider, to assist in developing an appropriate behavioural management plan incorporating expert recommendations, including a sexual education program and consideration of whether secure premises were needed.
  • All parties (HW, his legal representatives, and police prosecutors) granted liberty to apply to restore the matter during the adjournment period.
  • HW's existing bail to continue, subject to any submissions from the parties.

Key Takeaways

  • The Local Court confirmed it holds jurisdiction to determine fitness to plead in summary proceedings, drawing on the court's inherent authority to ensure fair process, even in the absence of express statutory conferral under the MHFPA.
  • A finding of unfitness to plead does not automatically preclude the making of a section 32 order under the MHFPA; the Magistrate held that the two determinations can coexist where the circumstances and legislative purpose support diversion.
  • Permanent stays remain a remedy of last resort; the existence of a viable alternative order under section 32 was sufficient reason to decline the defence's application for a stay.
  • Where a defendant with cognitive impairments is found unfit to plead and diverted under section 32, the court may direct that reasons be provided to oversight bodies such as the Public Guardian and a residential care provider to facilitate the development of appropriate support and behavioural management plans.
  • Under section 32, the court may adjourn proceedings to allow a management plan to be prepared, and may impose bail conditions and reserve liberty to apply during that period.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 66, 202
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 27, 32
- Justice Legislation Amendment Act 2017 (NSW)

Cases:
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230
- Eastman v R (2000) 203 CLR 1
- Ngatayi v The Queen (1980) 147 CLR 1
- DPP v El Mawas [2006] NSWCA 154
- DPP v Saunders [2017] NSWSC 760
- DPP v Shirvanian (1998) 44 NSWLR 129
- Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
- Mailes v DPP [2006] NSWSC 267
- Mantell v Molyneux [2006] NSWSC 955
- Pioch v Lauder (1976) 13 ALR 266
- Quinn v Director of Public Prosecutions [2015] NSWCA 331
- R v Mailes (2001) 53 NSWLR 251
- Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538
- TS v R [2014] NSWCCA 174