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District Court 11 February 2022

Squires v R

[2022] NSWDC 147

Domestic & family violence
CRIME APPEAL OFFENCE COMMITTED BELOW THE MID RANGE OF OBJECTIVE SERIOUSNESS APPLICANT SUFFERED FROM BI

Citation: Squires v R [2022] NSWDC 147
Court: District Court of New South Wales
Date: 11 February 2022
Judge(s): Neilson DCJ

Background

The appellant had been convicted in the Local Court at Waverley of intimidating his 21-year-old step-daughter, an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The incident occurred over approximately five minutes on the evening of 24 June 2020 at North Bondi, arising from a domestic disagreement about whether the appellant's young son should receive additional food after dinner. The appellant was 44 years old at the time, had no prior criminal record, and had been undergoing mental health treatment in the period surrounding the offence.

No application under s 32 of the Mental Health (Forensic Provisions) Act 1990 had been made in the Local Court, either before the finding of guilt or at sentencing. The appellant gave evidence before the District Court that his solicitor had not advised him such an application was available at the sentencing stage.

The appellant filed a notice of appeal against both conviction and sentence and also contested an apprehended domestic violence order. The appeal ultimately resolved as an application under s 32 of the Mental Health (Forensic Provisions) Act 1990.

Legal Issues

  • Whether the court should entertain a s 32 application on appeal, given that no such application had been made in the Local Court.
  • Whether the appellant was suffering from a mental illness within the meaning of s 32(1)(a) at the time of the offence.
  • Whether it was more appropriate to deal with the appellant under the mental health diversion provisions rather than according to law, balancing the purposes of punishment and community protection against the public interest in diversion.

Decision

Issue 1: Entertaining the s 32 Application on Appeal

The District Court accepted the appellant's evidence that his former solicitor had not advised him of the availability of a s 32 application before sentence was passed, and that he would have instructed his solicitor to make such an application had he known (at [8]). On that basis, Neilson DCJ found it appropriate to consider the matter under s 32 for the first time on appeal (at [8]).

Issue 2: Mental Illness at the Time of the Offence

The court reviewed a substantial body of medical evidence, including records from a general practitioner, a clinical psychologist, and a psychiatrist. The GP's mental health treatment plan predated the offence by approximately five months, and the appellant had been seen regularly by a clinical psychologist in the months before and after the incident (at [10]-[13]). His psychologist had referred him to a psychiatrist because the psychologist was not comfortable managing the patient given a suspected diagnosis of bipolar disorder; that diagnosis was subsequently confirmed (at [16]). The court also noted that family members and a police officer independently observed signs consistent with bipolar disorder in the period surrounding the offence (at [20]). The court had no hesitation in finding that the appellant suffered from a mental illness within the meaning of s 32(1)(a) as at 24 June 2020 (at [21]).

Issue 3: Appropriateness of Diversion

Neilson DCJ weighed the competing interests of punishment and community protection against the public interest in diversion. The court identified several factors favouring diversion: the appellant's prior good character and absence of any criminal record (at [23]); the objective seriousness of the offence, which fell below the mid-range for s 13(1) offences (at [28]); and the unsuitability of the case for either specific or general deterrence given the appellant's mental health condition, which was probably not adequately controlled at the time of the offence (at [26]). A mental health treatment plan prepared by the appellant's clinical psychologist, Mr David Marishel, was before the court, and Mr Marishel agreed to act as responsible person (at [29]). The court found diversion appropriate, with one amendment to the plan requiring engagement with a psychiatrist no later than 31 March 2022 (at [29]-[30]).

Orders Made

  • The conviction recorded and sentence passed by the Local Court at Waverley on 16 April 2021 were set aside.
  • The charge was dismissed.
  • The appellant was discharged into the care of clinical psychologist David Marishel on condition of compliance with the mental health treatment plan in Exhibit 4, amended so that paragraph 5 is read as requiring psychiatrist engagement no later than 31 March 2022.
  • The apprehended domestic violence order made by the Local Court on 16 April 2021 was set aside.
  • The order is for a period of six months from the date of judgment.

Key Takeaways

  • A s 32 application under the Mental Health (Forensic Provisions) Act 1990 may be entertained for the first time on appeal where the defendant was not advised by their solicitor at the sentencing stage that such an application was available (at [8]).
  • Sufficient evidence of mental illness existed to satisfy the first threshold under s 32(1)(a) where a bipolar disorder diagnosis was confirmed by a psychiatrist, where a GP mental health treatment plan predated the offence by months, and where independent observers had noted signs consistent with that diagnosis around the time of the offence (at [21]).
  • Under the discretionary balancing exercise required by s 32, a defendant's prior good character, the absence of a criminal record, and the low-to-mid objective seriousness of the offence are all relevant factors favouring diversion from the criminal justice system (at [26], [28]).
  • Where a defendant's mental health condition was probably not adequately controlled at the time of the offence, the court found neither specific nor general deterrence to be appropriate sentencing considerations (at [26]).
  • In granting a s 32 order, the District Court may amend the terms of a mental health treatment plan proposed by the responsible person before approving it, provided the amendment is consistent with the plan's therapeutic purpose (at [29]-[30]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Nil.