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District Court 21 July 2021

Khoury v R (No 2)

[2021] NSWDC 435

Assault & violenceDomestic & family violence
CRIME APPEAL AND REVIEW MENTAL HEALTH

Citation: Khoury v R (No 2) [2021] NSWDC 435
Court: District Court of NSW
Date: 21 July 2021
Judge(s): Montgomery DCJ

Background

The appellant was the subject of two domestic assault charges arising from incidents during his marriage. The first, a common assault on 17 April 2018, involved the appellant grabbing the victim by the upper arms and throwing her onto a bed during an argument, causing her significant distress but no visible injuries. The second, an assault occasioning actual bodily harm on 16 February 2019, involved the appellant grabbing and shaking the victim in a motor vehicle, leaving bruising resembling finger marks. The victim did not report either incident to police until July 2020, more than a year after the second event.

At the Local Court, the Learned Magistrate refused to deal with the appellant under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a diversionary scheme for accused persons suffering from a mental condition. Following that refusal, the appellant entered guilty pleas and was sentenced to two Conditional Release Orders with supervision conditions and an Apprehended Domestic Violence Order.

The appellant appealed to the District Court on all grounds. Notably, the Crown reversed its position on appeal, moving from not opposing the section 32 application below to actively opposing it before Montgomery DCJ, though it conceded the Magistrate had erred in finding that the abatement of symptoms meant the underlying conditions had resolved.

Legal Issues

  • Whether the Learned Magistrate erred in refusing to deal with the appellant under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the appellant's mental health condition at the time of the offending, and its current status, warranted diversion under the section 32 scheme rather than sentencing at law
  • Whether abatement of symptoms at the time of the hearing precluded resort to the section 32 diversionary scheme

Decision

Section 32 Diversion: Eligibility and Appropriateness

Montgomery DCJ found the appellant eligible to be dealt with under section 32 and concluded it was appropriate to do so (at [30]). The evidence from the appellant's treating GP and psychologist consistently established that, at the time of the offending, the appellant suffered from Adjustment Disorder with disturbance of conduct, anxiety, and depression, and that treatment remained available (at [13]-[16], [19]).

Significance of Abated Symptoms

The court rejected the Crown's position that abatement of symptoms at the time of the lower court hearing rendered section 32 unavailable or purposeless (at [28]). Consistent with the approach recognised in Sullivan v Director of Public Prosecutions [2020] NSWSC 253, the court noted that where a mental health condition has been treated and resolved by the time of the hearing, it remains open to dismiss a charge unconditionally under section 32(3)(c) (at [29]). Further, the medical literature and updated clinical reports confirmed the underlying conditions of Adjustment Disorder, fluctuating mood, depression, anxiety with panic attacks, and anger management difficulties had not entirely dissipated, and all treating practitioners recommended the mental health care plan continue (at [26]-[27]).

Removal of the Identified Stressor

The court placed considerable weight on the fact that the single identified stressor causing the conduct, being the fractious marital relationship with the victim, had been removed by the parties' separation (at [26]). The appellant had not approached or caused trouble to the victim since the charged incidents, had complied with the ADVO, and had completed an anger management programme (at [32]).

Culpability and Deterrence

The court found that proceeding by the diversionary scheme properly addressed the significantly moderated criminal culpability and the considerations of general deterrence in this case (at [30]-[31]). Sentencing at law, the court observed, would have added little beyond the restrictions already achievable through a Conditional Release Order, while the appellant would simply have pursued treatment in any event (at [31]).

Orders Made

  • The appellant to comply with the treatment plan devised by his treating GP from time to time, and with all modalities and requirements of treatment as directed by his treating psychologist from time to time
  • Compliance with the mental health care plan and treatment to be supervised by the treating psychologist
  • The treating psychologist agreed to supervise the plan and to report any breach to the court promptly
  • Orders to commence on 21 July 2021 and to continue for a period of six months

Key Takeaways

  • Under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), abatement of a mental health condition's symptoms by the time of hearing does not of itself preclude the court from proceeding under the diversionary scheme; where conditions have resolved, dismissal without conditions under section 32(3)(c) remains an available outcome (at [29]).
  • A finding that symptoms had abated does not establish that the underlying mental health conditions have entirely dissipated; the court distinguished between symptomatic abatement and resolution of the underlying disorder, relying on consistent medical opinion to that effect (at [26]-[27]).
  • The District Court confirmed that section 32 serves a distinct purpose where an accused suffered from a mental condition at the time of the offence, even when that condition has been substantially treated by the hearing date (at [29]).
  • Removal of the specific stressor that precipitated offending was treated as a significant consideration favouring diversion, particularly where the appellant had remained compliant with an ADVO and had not re-offended over a substantial period (at [26], [32]).
  • Where criminal culpability is significantly moderated by evidence of an underlying mental health condition directly connected to the offending, and where continued treatment is recommended by all clinical practitioners, the diversionary purpose of section 32 may outweigh general deterrence considerations that would otherwise support sentencing at law (at [30]-[31]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW) s 12
- Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

Cases
- Charara v the Queen [2006] NSWCCA 244
- Sullivan v The Director of Public Prosecutions New South Wales [2020] NSWSC 253