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District Court 18 May 2023

R v O’Neill

[2023] NSWDC 650

Domestic & family violencePublic order & justice offences
CRIME APPEAL FROM LOCAL COURT

Citation: R v O'Neill [2023] NSWDC 650
Court: District Court of New South Wales
Date: 18 May 2023
Judge(s): Neilson DCJ

Background

The appellant was charged with stalking a former domestic partner over a period of approximately four months between April and August 2022, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The conduct involved repeated unwanted contact following the breakdown of a nine-year relationship, with no actual physical violence alleged.

The appellant had a long and documented history of serious depressive illness, including diagnoses of major depressive disorder, dysthymia, and a trauma-related disorder stemming from childhood sexual assault. A clinical psychologist, Mr Robert Pringle, provided evidence that during the period of offending the appellant was not consistently taking his prescribed medication, and that his mental health was significantly impaired at the time.

In the Local Court, the appellant applied for a mental health order under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the MHCIFP Act), which would have allowed the charge to be dismissed and the appellant discharged into supervised treatment. Magistrate Denes refused that application and instead imposed a Community Corrections Order with a condition of continued psychological treatment. The appellant appealed to the District Court.

  • Whether the Local Court Magistrate ought to have exercised the discretion under s 14 of the MHCIFP Act to dismiss the charge and discharge the appellant into the care of a treating clinician, given his mental health at the time of offending and at the time of sentence.
  • Whether the District Court, on appeal, should exercise that discretion in the appellant's favour.

Decision

Neilson DCJ reviewed the relevant considerations under s 14 of the MHCIFP Act, which permits a court to dismiss a charge and discharge a defendant into the care of a responsible person or on the condition that the defendant comply with a treatment plan, where the defendant's mental health warrants such an approach.

His Honour accepted the expert evidence from Mr Pringle, whose reports detailed the appellant's longstanding depressive illness, the specific stressors that precipitated the offending, and the appellant's significant cognitive and emotional impairment at the relevant time. Although the appellant did not meet the statutory definitions of "mentally disordered" or "mentally ill" under the Mental Health Act 2007, his Honour found the impairment was nonetheless substantial and directly relevant to the conduct charged.

His Honour also took into account the appellant's genuine engagement with treatment since August 2022, his compliance with an Apprehended Domestic Violence Order (ADVO), the absence of any further contact with the complainant, and the appellant's own written statement expressing insight into his behaviour and commitment to ongoing treatment.

On these facts, his Honour was satisfied that the Magistrate ought to have made a s 14 order and that the District Court should do so on appeal. The conviction and sentence imposed in the Local Court were set aside.

Orders Made

  • The conviction recorded and penalty imposed by the Local Court at Manly on 2 December 2022 were set aside.
  • The charge was dismissed.
  • The appellant was discharged into the care of Mr Robert Pringle, clinical psychologist, on condition that he comply with the psychological treatment plan referred to in Mr Pringle's report of 23 November 2022.
  • The order operates for a period of one year from 18 May 2023.

Key Takeaways

  • The District Court held that a s 14 order under the MHCIFP Act can be appropriate even where the defendant does not meet the stricter definitions of "mentally ill" or "mentally disordered" under the Mental Health Act 2007, provided the mental health impairment is sufficiently significant and connected to the offending.
  • A defendant's active engagement with treatment after the offending, demonstrated compliance with existing court orders, and expressed insight into past conduct are all relevant considerations in the s 14 discretion.
  • Under the MHCIFP Act, the District Court on appeal can make a s 14 order in substitution for the Local Court's decision, including where the original sentencing court refused to make such an order.
  • Inconsistent compliance with prescribed psychiatric medication during the period of offending may weigh in favour of a s 14 order where that non-compliance is connected to deteriorating mental health and the conduct charged.
  • His Honour noted, in passing, that the Magistrate's Community Corrections Order did not include the supervision condition required by s 4A of the Crime (Sentencing Procedure) Act 1999, though this observation did not form the basis of the appellate decision.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 14
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crime (Sentencing Procedure) Act 1999 (NSW), s 4A
- Mental Health Act 2007 (NSW)

Cases cited: None cited in the judgment.