Citation: Mo v Director of Public Prosecutions [2023] NSWDC 27
Court: District Court of New South Wales
Date: 16 February 2023
Judge(s): Abadee DCJ
Background
The appellant was a PhD candidate at the University of Sydney who, in March 2021, placed a small quantity of powdered sulphur behind posters he had hung in the lifts of a university science building. The sulphur was a benign, commonly used laboratory substance with no harmful properties. The appellant was associated with a student protest group opposing disruptive changes made by the university to staff and research arrangements.
When a staff member discovered the sulphur the following morning, the building was evacuated and firefighters in protective equipment attended the scene. The substance was quickly and correctly identified as sulphur. The appellant had been lawfully on the premises and explained that he intended only a minor annoyance, believing the scientifically trained building occupants would readily recognise the substance.
The appellant was convicted in the Parramatta Local Court of leaving a substance with intent to induce a false belief that it was dangerous to occupants, contrary to s 93R of the Crimes Act 1900 (NSW). He was sentenced to a one-year intensive correction order. His prior legal representative had not pursued a mental health application at the Local Court level. He appealed to the District Court on all grounds and applied under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) for dismissal of the charge and discharge.
Legal Issues
- Whether the appellant suffered from a mental health impairment at the time of the offence, making him eligible to apply under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
- Whether it was more appropriate for the appellant to be dealt with under the Act (that is, by dismissal and discharge with conditions) rather than otherwise in accordance with the law.
- If the s 14 application failed, whether leave should be granted for a severity appeal against the sentence imposed.
Decision
The Crown accepted, without contest, that the appellant was suffering from a mental health impairment at the time of the offence. The pivotal question was therefore whether it was more appropriate to divert the appellant under the Act. The primary focus of the parties' submissions centred on s 15(b): the nature, seriousness, and circumstances of the alleged offence.
The court found that, while the offence carried a maximum of five years' imprisonment on indictment, several features of the facts substantially reduced its objective gravity in context. The substance was benign, commonly available in the building without restriction, and rapidly identified. The appellant was lawfully present, had not intended to cause serious alarm, and did not anticipate the scale of the response. These features distinguished the case from more serious bioterrorism-type scenarios the offence was designed to address.
The court then weighed the s 15 considerations holistically, including the appellant's mental health impairment, his significant rehabilitation since conviction, the absence of any relevant prior criminal history, his low risk of reoffending, and the serious collateral consequences the conviction had already caused to his academic career. Abadee DCJ noted that the mental health issues should ideally have been raised at first instance rather than on appeal, but that the District Court, stepping into the shoes of the Magistrate, retained the power to act under s 14.
The court concluded that it was more appropriate to deal with the matter under the Act. Conditional discharge was ordered, placing the appellant under the care of a responsible person and requiring ongoing mental health treatment for 12 months.
Orders Made
- The conviction and sentence imposed by the Parramatta Local Court on 20 May 2022 were set aside.
- The charge under s 93R of the Crimes Act 1900 (NSW) was dismissed.
- The appellant was discharged on condition that he come under the care of a nominated responsible person for 12 months, commencing 16 February 2023.
- Conditions of discharge included: attendance for psychiatric appointments with Dr Teoh every three months (or as directed); weekly counselling with the responsible person (or as directed); and continuation of prescribed medication.
Key Takeaways
- Under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a court may dismiss a charge and order discharge where a defendant was suffering from a mental health impairment at the time of the offence and it is more appropriate to do so than to proceed under ordinary criminal law.
- The s 15 factors guiding that discretion are non-exhaustive. The District Court treated the nature, seriousness, and circumstances of the offence (s 15(b)) as the pivotal consideration on the facts, but assessed it alongside rehabilitation, reoffending risk, personal history, and the impact of the proceedings.
- A failure to raise a mental health diversion application at first instance does not foreclose the issue on appeal. The District Court, exercising the full jurisdiction of the Magistrate, may entertain the application afresh.
- Objective seriousness of an offence is assessed in context. The court distinguished this case from the more serious end of the s 93R spectrum, noting the benign nature of the substance, its ready availability in the relevant building, and the speed with which it was identified.
- Significant collateral consequences of a conviction, including permanent career damage, formed part of the court's overall assessment when determining whether diversion was the more appropriate course.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 3A, 93R
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 14, 15
- Criminal Legislation Amendment Act 2001 (NSW) s 93I
- Mental Health (Criminal Procedure) Act 1990 (NSW)
Cases:
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DPP v El Mawas (2006) 66 NSWLR 9
- Muldrock v The Queen (2011) 244 CLR 120
- Veen v The Queen (No 2) (1988) 164 CLR 465