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District Court 12 April 2022

R v Aidoo

[2022] NSWDC 114

Assault & violenceTheft & property
MENTAL HEALTH

Citation: R v Aidoo [2022] NSWDC 114
Court: District Court of NSW
Date: 12 April 2022
Judge: Abadee DCJ

Background

The appellant, a man in his early forties with a history of bipolar disorder, pleaded guilty in the Downing Centre Local Court to two offences arising from an incident in Surry Hills in the early hours of 15 January 2021. The offences were using an offensive weapon with intent to commit an indictable offence (intimidation) under s 33B(1) of the Crimes Act 1900 (NSW), and stealing from a victim contrary to s 94(b) of the same Act.

The offending involved the appellant, who was plainly in a disturbed mental state at the time, threatening a cleaner with a glass bottle and forcing him to surrender his phone, earphones, work key, and lighter. In the hours before and after the incident, the appellant's behaviour was erratic and incoherent, consistent with a serious mental health episode. He was arrested with difficulty and sedated at St Vincent's Hospital emergency department.

The Local Court convicted and sentenced the appellant to an aggregate community corrections order of 30 months, with conditions including program participation and rehabilitation. The appellant initially lodged a severity appeal, then amended it to an "all grounds" appeal, which opened the door to the District Court's jurisdiction to divert him into the mental health system under the Mental Health (Criminal Procedure) Act 1990 (NSW).

  • Whether the appellant satisfied the two-limb test under s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) to justify diversion from the ordinary criminal law process, specifically:
  • Whether he was a person with a mental illness or condition at the time of the offending
  • Whether it was more appropriate to deal with him under the mental health provisions than according to law
  • As an alternative, whether the community corrections order imposed by the Local Court was manifestly excessive (severity ground)

Decision

Abadee DCJ was satisfied on the evidence that the appellant had a mental illness at the date of the offending. The court relied on psychiatric evidence from Dr Sarah Michael, who had treated the appellant since 2007 and had noted a deterioration of his bipolar disorder in the preceding year, and from forensic psychiatrist Dr Furst, whose report was prepared shortly before the Local Court proceedings. Both psychiatrists confirmed the diagnosis and its relevance to the offending conduct.

On the second limb of the test, the court assessed whether it was more appropriate to address the appellant's circumstances through the mental health framework rather than through conventional sentencing. The court took into account the appellant's limited and largely dated criminal history, the context of the offending, his engagement with mental health services, and his relocation to a rural area where he was under the care of local mental health practitioners. The court noted that his treating team in Bathurst could provide more tailored and closer attention than had been available to him previously.

The court was satisfied that both limbs of the s 32 test were met and made orders diverting the appellant from the criminal process. This conclusion made it unnecessary to consider the alternative severity ground relating to the community corrections order.

Orders Made

  • The convictions entered on 16 December 2021 were set aside and the two charges dismissed.
  • The sentence imposed by the Local Court on 16 December 2021 was set aside.
  • The appellant was discharged on conditions requiring him to:
  • Attend the Bathurst Community Mental Health Service for assessment, treatment, and support
  • Attend appointments with his case manager at a clinically indicated frequency (approximately monthly initially)
  • Remain under the care of his treating psychiatrist and attend appointments as clinically indicated
  • Accept prescribed psychotropic medication (Invega Sustenna, Olanzapine, and Lithium)
  • Accept counselling or therapeutic interventions as clinically indicated, including psychological support, and drug and alcohol counselling if cannabis use escalated
  • Follow dietary recommendations for mood stabilisation

Key Takeaways

  • The District Court confirmed that an "all grounds" appeal from the Local Court is the appropriate procedural vehicle for enlisting the District Court's jurisdiction to consider mental health diversion under s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW).
  • Where a defendant satisfies both limbs of the s 32 test, namely that a mental illness or condition existed at the time of offending and that it is more appropriate to deal with the person under the mental health provisions, the court may set aside convictions and discharge the defendant subject to treatment conditions rather than impose a criminal sentence.
  • Satisfaction of the diversion test renders it unnecessary to consider any alternative severity ground in the same appeal.
  • Psychiatric evidence from treating clinicians with long-term knowledge of the defendant's history can carry significant weight in establishing both the mental illness limb and the appropriateness limb of the s 32 framework.
  • The nature and structure of available mental health support, including the quality and suitability of local services, formed part of the court's assessment of whether diversion was the more appropriate course.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 94
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 32, 33
- Mental Health and Cognitive Impairment Provisions Act 2020 (NSW), s 4

Cases
- DPP v El Mawas (2006) 66 NSWLR 93