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District Court 17 May 2023

R v Reid

[2023] NSWDC 161

Sexual offencesDomestic & family violence
CRIMINAL LAW SEVERITY APPEAL

Citation: R v Reid [2023] NSWDC 161
Court: District Court of New South Wales
Date: 17 May 2023
Judge: Abadee DCJ

Background

The appellant pleaded guilty in the Wyong Local Court to two offences arising from the breakdown of a relationship. The first was intentionally distributing an intimate image without consent, contrary to s 91Q(1) of the Crimes Act 1900 (NSW). The second was using a carriage service to menace, harass or offend, contrary to s 474.17(1) of the Criminal Code 1995 (Cth), a federal offence.

The offending arose after the appellant's former partner ended sexual contact with her and began a new relationship. She sent an intimate video, initially to her former partner and later to his new girlfriend, accompanied by taunting messages. The carriage service offence involved a sustained series of text messages and phone calls over two days directed at the former partner, primarily about his involvement in their daughter's life.

The Local Court convicted the appellant on both counts and imposed a conditional release order for the state offence and a release-without-sentence arrangement for the federal offence. The appellant brought an all-grounds appeal to the District Court, challenging both her convictions and the severity of her sentence.

  • Whether the appellant suffered from a "mental health impairment" within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), or a "mental illness" within the meaning of s 20BQ of the Crimes Act 1914 (Cth), at the time of offending, so as to warrant diversion from the criminal justice system.
  • If diversion was warranted, whether the discretionary factors under s 15 of the MHCIFP Act favoured diversion.
  • On the severity appeal, whether the state offence should result in a discharge without conviction under a conditional release order pursuant to ss 9 and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the federal offence should result in release on probation under s 19B of the Crimes Act 1914 (Cth), without proceeding to conviction.

Decision

Conviction appeal (diversion): The court rejected the conviction appeal. His Honour was not satisfied that the appellant had established, on the evidence of the psychologist Mr Dieter, that she suffered from a mental health impairment or mental illness at the time of the offending. The report post-dated the convictions and was based on a limited account provided by the appellant. The threshold for diversion was not met, and the appeal on conviction grounds failed accordingly.

Severity appeal (state offence): The court allowed the severity appeal in relation to the sequence 1 state offence. His Honour found it expedient to discharge the appellant without conviction under a conditional release order, noting factors including her otherwise good character, the circumstances of the offending, and the significant risk that a criminal conviction would prejudice her employment prospects in her chosen field of early childhood teaching. The conditional release order was set for seven months and included a rehabilitation condition requiring the appellant to abide by the treatment plan identified in Mr Dieter's report.

Severity appeal (federal offence): In relation to the sequence 2 federal offence, the court found the offending to be of a trivial kind and applied similar considerations to those relevant to the state offence. His Honour found it expedient under s 19B of the Crimes Act 1914 (Cth) to release the appellant on probation without proceeding to conviction, on condition of good behaviour for seven months and upon giving security of $100.

Orders Made

  • The severity appeal was allowed.
  • The Local Court sentence for sequence 1 (state offence) was set aside. In lieu, a conditional release order of seven months was imposed under ss 9 and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), subject to standard conditions and an additional rehabilitation or treatment condition requiring the appellant to abide by the treatment plan in Mr Dieter's report.
  • The Local Court sentence for sequence 2 (federal offence) was set aside. In lieu, the appellant was discharged without proceeding to conviction under ss 19B(1)(b) and 19B(1)(d)(i) of the Crimes Act 1914 (Cth), upon giving security of $100 and complying with a condition of good behaviour for seven months.
  • The appellant's legal representative was directed to explain to the appellant her obligations under the conditional release order.

Key Takeaways

  • A post-conviction psychological report, based on a limited account from the offender, may be insufficient to establish the existence of a mental health impairment or mental illness at the time of offending for the purposes of diversion under the MHCIFP Act or the Crimes Act 1914 (Cth).
  • Where an offender combines both state and federal charges, separate statutory frameworks govern diversion and sentencing outcomes for each, requiring distinct analysis under the MHCIFP Act and the Crimes Act 1914 (Cth) respectively.
  • Under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a conditional release order without conviction may be appropriate where a criminal record would carry serious consequences for an offender's career prospects, even where the offending is not trivial.
  • The District Court confirmed that potential prejudice to employment and educational aspirations is a relevant consideration when assessing whether to impose a conditional release order, citing R v Mauger [2012] NSWCCA 51.
  • Characterisation of a carriage service offence as "trivial" in nature can support a finding that release on probation without conviction is expedient under s 19B of the Crimes Act 1914 (Cth).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91Q
- Criminal Code 1995 (Cth), s 474.17
- Crimes Act 1914 (Cth), ss 19B, 20, 20BQ
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 98, 99, 100N, 100O
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 14, 15

Cases:
- DPP v El Mawas (2006) 66 NSWLR 93
- Muldrock v The Queen (2011) 244 CLR 120
- R v AB [2022] NSWCCA 3
- R v Mauger [2012] NSWCCA 51
- Walden v Hensler (1987) 163 CLR 561