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District Court 3 September 2024

Skapik v R

[2024] NSWDC 427

Fraud & dishonesty
CRIME APPEAL AND REVIEW CRIMINAL PROCEEDINGS DIVERSIONARY SCHEME S 20BQ CRIMES ACT 1914 (CTH)

Citation: Skapik v R [2024] NSWDC 427
Court: District Court of NSW
Date: 3 September 2024
Judge: Scotting DCJ

Background

The appellant was employed as a team leader at a government housing contact centre and part-time as a retail sales assistant for Optus. In March 2019, he used his Optus login credentials to access the mobile account of his friend's partner, then provided that account information to the friend (a serving police officer) so the friend could monitor who she was communicating with during the breakdown of their relationship. The friend was subsequently charged with domestic violence offences.

The appellant was convicted in the Local Court of two counts of unauthorised access to restricted data under s 478.1 of the Criminal Code 1995 (Cth) and one count of unlawful disclosure of information under the Telecommunications Act 1977 (Cth). He appealed those convictions to the District Court.

On appeal, the appellant did not contest the underlying facts. Instead, he argued that he was suffering from Adjustment Disorder with mixed anxiety and depressed mood, and Social Anxiety Disorder, and that those conditions materially contributed to his offending. He sought to have the charges dealt with under the federal mental health diversion scheme in s 20BQ of the Crimes Act 1914 (Cth), which allows a court to dismiss charges and discharge a person into treatment rather than proceed under the general criminal law.

  • What constitutes "a mental illness within the meaning of the civil law" of New South Wales for the purposes of s 20BQ of the Crimes Act 1914 (Cth)?
  • Was the appellant suffering from such a mental illness at the time the application was heard?
  • Would it be more appropriate to deal with the appellant under the diversionary scheme rather than under the general criminal law?

Decision

Meaning of "mental illness within the civil law of NSW"

Section 20BQ uses the phrase "mental illness within the meaning of the civil law of the State or Territory." The court undertook a detailed statutory construction analysis, tracing the definition of "mental illness" through successive NSW mental health legislation. It concluded that the operative definition is drawn from the Mental Health Act 2007 (NSW), which defines mental illness as a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence of hallucinations, delusions, serious disorder of thought form, a severe disturbance of mood, or sustained or repeated irrational behaviour indicating a severe disturbance of thought or mood. The court rejected any suggestion that the phrase imported a broader or more colloquial understanding, and noted that reference to "civil law" directs attention to the statutory definition, not to the common law or to clinical diagnostic categories alone.

Whether the appellant met the definition

The court found that the appellant's diagnosed conditions, Adjustment Disorder and Social Anxiety Disorder, did not of themselves satisfy the statutory definition. However, the court accepted expert evidence that the appellant's Social Anxiety Disorder included symptoms of seriously impaired mental functioning characterised by irrational behaviour indicating a severe disturbance of thought or mood. On that basis, it was satisfied that as at 3 September 2024 the appellant was suffering from a mental illness within the civil law of NSW.

Whether diversion was more appropriate

The court accepted that the appellant's mental health conditions materially contributed to the offending, that he was unlikely to reoffend, and that the offending was a one-off aberration arising from the cumulative effect of serious psychological symptoms. The court was satisfied it was more appropriate to deal with him under the diversionary scheme than under the general criminal law. The appeal against conviction was allowed.

Orders Made

  • The appeal against conviction was allowed.
  • The convictions and penalties imposed by the Magistrate were set aside.
  • The court found that, as at 3 September 2024, the appellant was suffering from a mental illness within the civil law of New South Wales.
  • It was found more appropriate to deal with the appellant under s 20BQ of the Crimes Act 1914 (Cth) than in accordance with the general criminal law.
  • The Court Attendance Notice was dismissed and the appellant was discharged into the care of his treating psychologist for a period of 12 months (3 September 2024 to 2 September 2025), on condition that he continues to participate in treatment at times arranged between them.
  • Non-compliance may result in the appellant being called before the court and the charges being dealt with as if the discharge had not occurred.

Key Takeaways

  • The phrase "mental illness within the meaning of the civil law" in s 20BQ of the Crimes Act 1914 (Cth) picks up the statutory definition in the relevant state legislation. In NSW, that is the definition in the Mental Health Act 2007 (NSW), which requires serious impairment of mental functioning characterised by specified features such as hallucinations, delusions, severe mood disturbance, or irrational behaviour indicating a severe disturbance of thought or mood.

  • Common clinical diagnoses do not automatically satisfy the statutory threshold. The appellant's Adjustment Disorder and Social Anxiety Disorder were not sufficient on their face; the court required evidence that those conditions produced symptoms meeting the statutory definition's specific criteria.

  • Under s 20BQ, a person must be suffering from the relevant mental illness at the time the application is determined, not merely at the time of the offending. This follows the approach confirmed in CDPP v Mahamat-Abgelgader [2017] NSWSC 1102.

  • State mental health diversion provisions (such as Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)) do not apply to federal offences. Section 20BQ is the applicable pathway for federal offenders in summary proceedings, as confirmed in Kelly v Saadat-Talab (2008) 72 NSWLR 305.

  • In dismissing the charges and discharging the appellant into psychological care, the District Court confirmed that a finding of appropriateness under s 20BQ can rest on the combination of the mental illness's contribution to the offending, the low risk of reoffending, and the rehabilitative benefits of continued treatment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 20BQ, 20BR
- Criminal Code 1995 (Cth), s 478.1
- Telecommunications Act 1977 (Cth), s 276
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 20, 28
- Mental Health Act 2007 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Civil Liability Act 2002 (NSW)
- Interpretation Act 1901 (Cth)

Cases
- Kelly v Saadat-Talab (2008) 72 NSWLR 305
- Commonwealth Director of Public Prosecutions v Mahamat-Abgelgader [2017] NSWSC 1102
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Fox v Percy (2003) 214 CLR 118
- Charara v R [2006] NSWCCA 244
- Gianoutsas v Glykis [2006] NSWCCA 137
- DPP v El Mawas (2006) 66 NSWLR 93
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503