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District Court 23 October 2020

Denise Jane LEE v R

[2020] NSWDC 770

Public order & justice offences

Citation: Denise Jane LEE v R [2020] NSWDC 770
Court: District Court of New South Wales
Date: 23 October 2020
Judge(s): Wass SC DCJ

Background

The appellant, a former specialist radiologist, was originally charged with ten offences arising from a sustained campaign of harassing and menacing communications directed at three individuals. Six charges were ultimately dropped, and she was sentenced in the Local Court on four remaining counts: two relating to intimidation and use of carriage services to menace one complainant, and one each relating to two further complainants.

The Local Court magistrate had refused to deal with the matter under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and its Commonwealth equivalent, s 20BQ of the Crimes Act 1914 (Cth). These provisions allow a court, where satisfied that a person is mentally ill or cognitively impaired, to dismiss charges and divert the person into mental health care rather than proceeding under the general criminal law. The appellant appealed that refusal.

The case had a protracted procedural history stretching back to 2016, involving search warrant litigation in the Supreme Court, disciplinary proceedings before NCAT, and the appellant's suspension from medical practice.

  • Whether the appellant's mental health condition at the time of, and following, the offending satisfied the criteria for diversion under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and s 20BQ of the Crimes Act 1914 (Cth).
  • Whether the District Court, hearing the appeal afresh with the same powers as the magistrate, should exercise its discretion to dismiss the charges and discharge the appellant into mental health care.
  • Whether the magistrate's refusal of the s 32 application, including his characterisation of the appellant, was appropriate.

Decision

Wass SC DCJ conducted a full rehearing, exercising the same powers and functions as the original magistrate. The Court accepted the unchallenged medical evidence from Dr O'Dea, supported by an earlier diagnosis from Dr Adams, which established that the appellant suffered from a serious major mood disorder with prominent paranoia and delusions. The Court found that all four offences, while protracted and damaging, were caused by the appellant's mental condition rather than by malice of a kind divorced from psychiatric illness.

The Court assessed the objective seriousness of each offence through the lens of the appellant's mental disorder. In relation to the offending against the first complainant, the Court found that conduct amounted to harassment rather than threatening behaviour, and that the first complainant himself described the appellant more as an annoyance than a source of genuine fear. The offending against the remaining two complainants was found to be driven by delusion and paranoia. The Court emphasised that viewing the offending through the prism of the appellant's psychiatric condition was essential to a fair assessment.

The magistrate's refusal was criticised on two grounds. First, the Court found no proper basis for the magistrate's surprise at the prosecution's non-opposition to the s 32 application, noting that the Act permits such applications at any time and that an ethical prosecutor could reasonably form the view that diversion was appropriate. Second, the magistrate's description of the appellant as "a woman scorned," drawn from a 1697 play, was characterised as inappropriate and tone deaf, particularly given how that phrase had been used in prior media coverage of the case.

The District Court allowed the appeal, dismissed all charges, and discharged the appellant into mental health care under conditions. The Court also made additional observations about the responsibility of all participants in the criminal justice system, including those who report on it, to treat mentally ill persons with respect.

Orders Made

  • Appeal allowed.
  • Charges dismissed.
  • Appellant discharged into the care of Dr O'Dea (or any other qualified practitioner to whom she may be referred) on the following conditions:
  • The appellant is to remain in treatment with Dr O'Dea or any other qualified practitioner as referred from time to time.
  • The appellant is to remain in the care of her current general practitioner or any other such general practitioner as referred from time to time.
  • In respect of the State charge (sequence 3): a six-month order under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), commencing 23 October 2020.
  • In respect of the Commonwealth charges (sequences 2, 4, and 5): a three-year order under s 20BQ of the Crimes Act 1914 (Cth), commencing 23 October 2020.
  • Any breach of the orders will result in the matter being called up before the judge.

Key Takeaways

  • The District Court confirmed that an application under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) may be made at any time, and that a prosecution's non-opposition to such an application does not, of itself, provide grounds for refusing it.
  • A court conducting a rehearing on appeal from a refusal of a s 32 application exercises all the same powers and functions as the original magistrate, and deals with the matter entirely afresh.
  • Where unchallenged psychiatric evidence establishes that an offender's conduct was caused by serious mental illness, that condition forms a central part of the assessment of objective seriousness, even where the offending was prolonged and harmful to its victims.
  • Characterising a mentally ill female offender using dated literary references tied to gendered tropes was found to be inappropriate and tone deaf, particularly in circumstances where such characterisations had already featured in media reporting.
  • The decision reinforces that all participants in the criminal justice system bear responsibility for treating mentally ill offenders with respect, and that failure to do so risks bringing the justice system into disrepute.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Crimes Act 1914 (Cth), s 20BQ

Cases:
No cases were formally cited in the judgment.