Citation: R v SW [2020] NSWDC 930
Court: District Court of New South Wales
Date: 19 November 2020
Judge: Neilson DCJ
Background
The appellant was a 17-year-old Aboriginal Australian who had pleaded guilty in the Children's Court at Ballina to four offences. The primary offence was reckless wounding, committed on 2 April 2019 at Tabulam when the appellant, then aged 15 and nearly 16, stabbed his cousin once in the back with a knife during a confrontation that followed a domestic argument. The cousin sustained a laceration to the upper back requiring hospitalisation.
Three further offences arose while the appellant was in juvenile detention: assaults on Juvenile Justice youth officers on 4 May 2020, and a contravention of an apprehended domestic violence order (ADVO) on 12 May 2020. The ADVO contravention involved the appellant making a consensual phone call to his girlfriend, who was the protected person named in the order and later gave birth to the appellant's son.
The Children's Court imposed a 15-month probation order for the primary offence, a three-month probation period for the three offences against youth officers (already served), and a one-year good behaviour bond for the ADVO contravention. The appellant appealed against the severity of those penalties, seeking that the primary offence and the ADVO contravention be dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990 instead.
Legal Issues
- Whether the Children's Court sentences for the primary offence (reckless wounding) and the ADVO contravention were, in all the circumstances, manifestly excessive or otherwise inappropriate.
- Whether those two matters should instead be diverted under section 32 of the Mental Health (Forensic Provisions) Act 1990, given the appellant's diagnosed mental health conditions.
- Whether the three offences against Juvenile Justice officers, for which the penalty had already expired, warranted revisitation on appeal.
Decision
Neilson DCJ declined to revisit the three offences against the Juvenile Justice youth officers because the penalty imposed for those offences had already been served. Revisiting them would have been, in his Honour's words, an unnecessary exercise.
The court accepted the diagnosis of Foetal Alcohol Spectrum Disorder (FASD) as established by clinical psychologist Dr Meg Perkins. Her assessment identified at least three severe neurodevelopmental impairments: intelligence, attention, and affect regulation. The court noted expert evidence that FASD causes a pronounced tendency toward impulsive reaction and an inability to foresee consequences or learn from past experience, particularly in environments involving substance use or criminal behaviour.
In relation to the primary offence, the court weighed the appellant's profound background of disadvantage, including exposure to alcohol in utero, family violence, substance abuse, limited schooling, and the broader historical context of his Aboriginal community. The court found a section 32 order was appropriate to address the appellant's mental health needs and to give effect to what the court described as a community obligation to compensate for the circumstances of the appellant's birth disability and early deprivation.
The ADVO contravention was characterised as essentially technical: the contact was consensual, the relationship was ongoing at the time, and the couple subsequently lived together. The court indicated that, had this been the only matter before it, a finding equivalent to a non-conviction order under section 10 of the Crimes (Sentencing Procedure) Act 1999 would have been appropriate.
Orders Made
- The penalties imposed by the Children's Court for the offence of 2 April 2019 (reckless wounding) and the offence of 12 May 2020 (ADVO contravention) were set aside.
- Both charges were dismissed.
- The appellant was released into the care of nominated workers from Mission Australia and Magenta Community Services, subject to conditions including:
- Continued weekly engagement with Justice Health
- Continued engagement with the Community Mental Health team and all related appointments
- Continued compliance with prescribed medication
- Weekly meetings with a Mission Australia mentor
- Engagement with NDIS provider Magenta Community Services, including attending an occupational therapist, behavioural therapist, and speech therapist; residing in arranged accommodation; and attending TAFE or employment as arranged
Key Takeaways
- A diagnosis of FASD, confirmed by expert evidence meeting the 2016 Australian Federal Department of Health guidelines, can support diversion under section 32 of the Mental Health (Forensic Provisions) Act 1990 in lieu of conventional sentencing orders, including in appeals from the Children's Court.
- Where a penalty imposed for certain offences on a severity appeal has already been fully served, the District Court treated re-examination of those offences as unnecessary and declined to disturb them.
- Profound and documented disadvantage, including in utero alcohol exposure, family violence, interrupted education, and the historical dispossession of an Aboriginal community, formed part of the sentencing court's assessment of what response was appropriate for a young offender.
- An ADVO contravention involving consensual contact, where the relationship between the offender and the protected person remained ongoing, was characterised by the court as technical in nature and warranting only the most minimal response.
- Under section 32 of the Mental Health (Forensic Provisions) Act 1990, conditions of release can be structured to address multiple identified deficits simultaneously, including mental health treatment, disability support, accommodation, and vocational engagement.
Legislation and Cases Referenced
Legislation:
- Children's (Criminal Proceedings) Act 1987 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Cases:
No cases were cited in the judgment.