Citation: R v Patrech [2024] NSWDC 686
Court: District Court of New South Wales
Date: 13 November 2024
Judge: Neilson DCJ
Background
The appellant was a former registered psychologist who faced two charges of stalking or intimidating with intent to cause fear of physical or mental harm. The charges arose from phone calls made to a man whose former wife had been the appellant's patient. The proceedings were listed for hearing at the Downing Centre Local Court on 11 August 2023.
The appellant arrived late to court that day, having sent an email earlier that morning explaining he was travelling from the Lower Hunter Valley and seeking an adjournment. His Legal Aid grant had been revoked, he was unrepresented, and his consistent position throughout the proceedings had been that the charges should be dealt with under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, rather than proceed to a contested hearing.
Despite the appellant's clear and ongoing position, the Local Court recorded convictions and made an Apprehended Personal Violence Order (APVO). The appellant appealed to the District Court, seeking to have the convictions set aside and the charges dismissed under the Mental Health legislation.
Legal Issues
- Whether the Local Court denied the appellant procedural fairness by refusing an adjournment and proceeding to conviction in circumstances where he sought different relief
- Whether incorrect guidance given by the Local Court about the available options vitiated the pleas of guilty entered by the appellant
- Whether the charges should be dismissed under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and the appellant placed on a treatment plan
- Whether the existing APVO should be retained
Decision
Neilson DCJ found that the Local Court had denied the appellant procedural fairness. The appellant had attended court seeking an adjournment to restore Legal Aid and pursue orders under the Mental Health legislation. That position was maintained consistently, including after the Magistrate recorded the convictions. The "advice" given by the Local Court as to the available options was incorrect, and the resulting guilty pleas could not stand.
His Honour set aside the convictions on both counts of intimidation (sequences 3 and 4). The District Court then considered whether the charges should be dealt with under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which permits a court to dismiss charges and make mental health orders where it is appropriate to do so.
In considering the s 14 criteria, his Honour reviewed a report and treatment plan prepared by Dr Dennis Shum, the appellant's treating practitioner. Turning to the question of whether the appellant posed a danger to others, Neilson DCJ observed that while the appellant's conduct had been verbally confrontational, there was no indication of physical threat. His Honour concluded that the appellant's "bark might be loud, but the bite is probably completely lacking."
The court also noted the appellant's prior criminal history, which included a previous stalking conviction later reduced on appeal to a conviction with no penalty, as well as earlier offences dealt with under s 10A. Neilson DCJ found this history did not prevent a s 14 order being made, particularly given the appellant had not previously been dealt with under the Mental Health legislation.
Orders Made
- Pleas of guilty to two charges of intimidation (sequences 3 and 4) traversed and convictions set aside
- All four charges (sequences 1 to 4 of charge number H91823012) dismissed pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020
- Appellant placed in the care of Dr Dennis Shum on conditions requiring approximately fortnightly attendance for review and counselling and compliance with prescribed medication
- The Apprehended Personal Violence Order made by the Magistrate on 11 August 2023 (two years, conditions 1, 2 and 9) retained
Key Takeaways
- A conviction recorded after a court gives incorrect procedural guidance and refuses a reasonable adjournment application may constitute a denial of procedural fairness sufficient to have the conviction set aside on appeal.
- Where a defendant consistently and persistently sought orders under the Mental Health legislation both before and after conviction, that position is relevant to whether the plea of guilty reflects a genuine and informed exercise of the defendant's rights.
- Under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a court may dismiss charges and impose treatment conditions even where the defendant has a prior criminal history, provided the statutory criteria are satisfied and the defendant has not previously been dealt with under the Mental Health legislation.
- The District Court treated the absence of any prior mental health orders, combined with a current treatment plan from a treating practitioner, as supporting the appropriateness of a s 14 dismissal.
- Revocation of Legal Aid and the resulting unrepresented status of a defendant are circumstances a court must take into account when considering whether to grant an adjournment, particularly where the defendant has a clear and consistent position regarding the relief sought.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 14, 15, 19
- Legal Aid Commission Act 1979 (NSW), s 57
- Crimes Act 1900 (NSW), s 556A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 10A, 12
Cases
- White v R [2022] NSWCCA 241
- Ming Yuk Wong v The DPP [2005] NSWSC 129; 155 A Crim R 37
- R v Murphy [1965] VR 187
- R v Sagiv (1986) 22 A Crim R 73
- R v Concotta (NSWCCA, 1 November 1995, unreported)
- R v McLean [2001] NSWCCA 58
- R v Van [2002] NSWCCA 148