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Local Court 25 July 2022

Police v Russell

[2022] NSWLC 11

Drugs
SERIOUS OFFENDING LONGSTANDING MENTAL HEALTH ISSUES DISCRETIONARY JUDGMENT PROTECTION OF COMMUNITY SENTENCING DISCRETION PURPOSES OF SENTENCING

Citation: Police v Russell [2022] NSWLC 11
Court: NSW Local Court
Date: 25 July 2022
Judge(s): Stewart LCM

Background

A high school teacher charged with supplying a prohibited drug applied for diversion under the mental health legislation rather than proceeding to conviction and sentence in the ordinary way. The teacher, who was a Year 12 adviser at a community high school in the Sutherland Shire, had driven two students aged 15 and 16 to a parked location on 15 December 2021 and supplied them with a small amount of cannabis, which all three smoked together from a bong.

The defendant had a documented history of Bipolar Mood Disorder, first diagnosed in 2008 or 2009, and a Polysubstance Misuse Disorder. Psychiatric evidence linked the offending to a period of hypomania that developed following excessive alcohol consumption during the COVID-19 lockdown of 2021, compounded by cannabis use in early December of that year.

Police opposed the diversion application. The prosecutor argued that the seriousness of the offending, particularly the defendant's position of trust as a teacher supplying drugs to children in her care, warranted conventional sentencing rather than diversion.

  • Whether the defendant met the eligibility threshold for diversion under s 12(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that is, whether she had a mental health impairment.
  • Whether it was more appropriate to deal with the defendant under the diversionary scheme (s 12(2)) than in accordance with the ordinary law, notwithstanding the seriousness of the offending.
  • If diversion was appropriate, what conditions should attach to any order made under s 14 of that Act.
  • Separately, whether the sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) could be adequately addressed without recording a conviction, through a Conditional Release Order under s 9(1)(b) of that Act.

Decision

The Magistrate found that the defendant clearly satisfied the eligibility threshold. Two consultant psychiatrists, Dr Anthony Samuels and Dr David Grace, provided detailed reports confirming diagnoses of Bipolar Mood Disorder and Polysubstance Misuse Disorder. The prosecution appropriately conceded this eligibility. The defendant was not, however, classified as a mentally ill or mentally disordered person within the meaning of s 12(3) of the Act.

The central contested question was whether diversion was more appropriate than conventional sentencing. The Magistrate acknowledged the serious nature of the offending: a teacher in a position of trust had supplied an illegal drug to school children in her care. The prosecution's opposition was noted and given weight. However, the Magistrate found a causal connection between the defendant's bipolar condition, her polysubstance misuse disorder, and the commission of the offence, drawing on the psychiatric evidence presented.

The Magistrate then addressed the sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and considered the factors in s 10(3) of that Act, including the defendant's prior good character, lack of criminal history, age, and mental health. The Magistrate concluded that the sentencing purposes could be adequately met without recording a conviction.

In addressing the prosecution's reference to community expectations, the Magistrate stated plainly that the court is not a court of public opinion and is bound by its judicial oath. The outcome was a non-conviction with a two-year Conditional Release Order, with conditions designed to promote rehabilitation and protect the community through supervision and ongoing psychiatric treatment.

Orders Made

  • Conviction not recorded; the defendant was discharged under a Conditional Release Order for a period of two years pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Conditions of the order:
  • Supervision by Community Corrections.
  • Abstention from illicit drug use.
  • Compliance with the treatment plan set out in paragraph 120 of Dr Samuels' psychiatric report, in conjunction with the treatment plan contained in Dr Grace's report.

Key Takeaways

  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a magistrate must address at least two distinct questions: whether the defendant has a mental health impairment, and whether it is more appropriate to deal with the defendant under the diversionary scheme than in accordance with the ordinary law. Case law developed under the predecessor s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) continues to apply to this framework.
  • Seriousness of offending does not automatically preclude a diversion or non-conviction outcome. A magistrate retains a broad discretion, and an offence that is not trivial may still be resolved through the diversionary or non-conviction pathway where the relevant statutory considerations support that outcome.
  • A demonstrated causal connection between a diagnosed mental health condition and the offending conduct is a significant factor in favour of diversion, even where prosecution opposes it and the offending involves a clear breach of trust.
  • The Magistrate explicitly rejected the proposition that community expectations, standing alone, should determine the sentencing outcome, reaffirming that sentencing courts are bound by their judicial oath and the statutory purposes of sentencing rather than public reaction.
  • The sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including community protection, deterrence, and rehabilitation, can in appropriate cases be addressed through a non-conviction order with structured conditions such as supervision and compliance with a psychiatric treatment plan.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 5, 12, 14, 15
- Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 9, 10
- Children (Criminal Proceedings) Act 1987 (NSW) s 15A

Cases:
- DPP v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194