Ahmadi v Jarvis
[2020] VCC 449
•21 April 2020
| IN THE COUNTY COURT OF VICTORIA AT melbourne criminal DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-19-0755
IN THE MATTER OF
AN APPEAL FROM THE MAGISTRATES’ COURT AT DANDENONG
| SARAH AHMADI | Appellant |
| v | |
| BREE TAMERISS JARVIS | Respondent |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 February and 21 April 2020 | |
DATE OF JUDGMENT: | 21 April 2020 | |
CASE MAY BE CITED AS: | Ahmadi v Jarvis | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 449 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Appeal from Magistrates’ Court where Appellant had pleaded guilty to two charges of arson and two charges of attempted arson – leave granted to Appellant to appeal against conviction and sentence – issue of whether at time of offending Appellant was suffering from a mental impairment
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 5, 20; Criminal Procedure Act 2009 (Vic)
Cases Cited: Maya (a pseudonym) v DPP [2019] VSCA 117
Judgment: Order that the Appellant be discharged on all charges.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Pyne | James Dowsley & Associates |
| For the Respondent | Mr S Davison/ Ms M Pavlou | Solicitor for the Director of Public Prosecutions |
HER HONOUR:
1 This is an appeal from orders made at the Magistrates’ Court at Dandenong on 15 January 2019. On that date, the Appellant pleaded guilty to two charges of arson and two charges of attempted arson. The orders made by the Magistrate in relation to each charge were that the Appellant be convicted and undertake a Community Correction Order for a period of 12 months, with conditions of supervision and treatment and rehabilitation relating to mental health, and programs to reduce the risk of offending.
2 Following the imposition of the sentence in the Magistrates’ Court, by order made in the County Court on 19 July 2019 the Appellant was granted leave to appeal to the County Court out of time, as well as leave to appeal against conviction as well as sentence.
3 The charges which are the subject of the appeal relate to alleged offending by the Appellant on 29 August 2018 (Charge 1 arson) and 3 September 2018 (Charge 2 attempted arson, Charge 3 arson and Charge 4 attempted arson). I here note that the Magistrates’ Court record incorrectly reflects that the Appellant was originally sentenced on Charge 4, described as arson, notwithstanding that the charge sheet shows Charge 4 to be a charge of attempted arson. I consider it appropriate to order that Charge 4 be amended in the County Court record to reflect that Charge 4 is one of attempted arson. I will append the summaries of the alleged offending (Exhibit “A”) to these remarks.
4 The issue raised by the Appellant is whether, pursuant to s20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)(‘CMIA’), the accused is not guilty because, at the time of engaging in conduct constituting the alleged offences, she was suffering from a mental impairment. The Appellant’s defence relies principally upon a psychiatric assessment embodied in the report of Dr Nicholas Owens, consultant psychiatrist, dated 24 October 2019 (Exhibit “1”).
5 In his report, Dr Owens sets out a mental health history of the Appellant which appears to date back to some time in the mid-2000s, in particular, following the birth of her son on 17 October 2006. He records that in January 2007 she was admitted to the Monash Medical Centre for symptoms which she recalled as being of depression, but for which she was prescribed the anti-psychotic medication, Risperidone. She had a subsequent admission to Dandenong Hospital in 2011 relating to emotional difficulties in the relationship with her then husband and, also, in relation to the parenting of her son. Then, in mid-2018 she overdosed on Risperidone tablets and was apparently, again, admitted to Dandenong Hospital. The overdose occurred following a two month history of deteriorating health, her resignation from her job as a food services assistant, in which she had worked for seven years, and the Appellant’s subsequent inability to manage her mortgage payments and consequent financial dependence upon members of her family.
6 After the Appellant’s discharge from Dandenong Hospital in mid-2018, she returned to see her private treating psychiatrist, Dr Gelman, who continued to prescribe anti-psychotic medication to her. However, she stopped taking such medication and her mood deteriorated. It was in this context that the alleged offending occurred on 29 August 2018 and 3 September 2018.
7 The Appellant does not dispute that she committed the act of damaging property belonging to another by fire (Charges 1 and 3) or attempting to damage property belonging to another by fire (Charges 2 and 4), but claims that she has a defence of mental impairment pursuant to s. 20(1)(b) of the CMIA.
8 Dr Owens’ opinion set out in paragraph 65 of his report supports the Appellant’s contention that, at the time of committing the acts in question, the Appellant was suffering from a mental impairment. He states that, although the Appellant knew the nature and quality of her actions (namely that she was setting fire to various things with the intent to destroy them), on the balance of probabilities she was unable to reason with a moderate degree of sense and composure that her actions were wrong because she was labouring under delusions that she was being set up to be killed and also suffering associated olfactory hallucinations likely to have added to her sense of imminent threat.
9 It is submitted by the Appellant that, as there is no opinion of a psychiatrist to the contrary, thus this Court should accept the opinion of Dr Owens and, accordingly, find the Appellant not guilty of all offences pursuant to s. 20(2) of the CMIA. It is further submitted that, as this Court is exercising the jurisdiction of the Magistrates’ Court, then s. 5(2) of that Act compels this Court to discharge the Appellant.
10 The initial response to the Appellant’s contention by Mr Davison, for the respondent, was to indicate that the Prosecution required an adjournment in order to consider its position. Mr Davison articulated that there appeared to a number of options available to the prosecution, namely, to remit the matter back to the Magistrates’ Court committal stream, to withdraw the charges and file a direct indictment in the County Court, to determine the appeal in its current state in the absence of any rebuttal psychiatric report having been obtained by the Director of Public Prosecutions or, alternatively, to adjourn the matter to enable such a report to be obtained. He expressed concern that an unconditional discharge of the Appellant as sought by her could not ensure that her mental health needs were adequately addressed. He submitted that there was no doubt that she required treatment, but the incidents which form the subject of the offending are serious and carried with them a high risk of harm to others.
11 I stood the matter down on 14 February 2020 to enable Mr Davison to obtain instructions. When the matter resumed in the afternoon, he indicated that he had obtained instructions for the matter to proceed, as is, without obtaining any psychiatric report of the Appellant on behalf of the Director of Public Prosecutions.
12 Being appraised of the nature of the offending contained in the summaries tendered as Exhibit A and having being appraised of the material tendered by the Appellant as Exhibits 1, 2, 3 and 4, left me in no doubt that the offending occurred in the context of the Appellant having a history of delusional/psychotic symptoms arising from her condition of schizophrenia which had been diagnosed in or about 2007. For this condition, she had been prescribed anti-psychotic medication with which she had been, at times, non-compliant. Specifically, she had ceased to take her medication for a period of time leading up to and on the dates of committing the acts which are the factual bases of these offences. In the light of these matters, I was concerned to receive considered submissions from each of the parties. Accordingly, as I was shortly to go on extended leave, I adjourned the matter to 21 April 2020, with an order that each party provide written submissions to the Court.
13 Written submissions were provided by each party on 20 April 2020 and have been marked for identification. In essence, both the Appellant and the Respondent submit that, given that the County Court is exercising the jurisdiction of the Magistrates’ Court when hearing this appeal, then s. 5 of the CMIA applies. The parties are in agreement that Dr Owens’ opinion in Exhibit 1, in particular paragraph 65, makes out the defence of mental impairment because, on the balance of probabilities, the Appellant “was unable to reason with a moderate degree of sense and composure that her actions were wrong. This is because she was labouring under delusions that she was being set up to be killed by a group of people, including her ex-husband and the CIA, and she identified the particular places where she started the fires as being places where this was going to happen.” Dr Owens stated that her history of associated olfactory hallucinations at the relevant times was interpreted by the Appellant as evidence of her having been drugged and he considered that these “were likely to have added to her sense of imminent threat.” Hence, Dr Owens supported a defence of mental impairment in respect of the charges.
14 In the circumstances, the parties are agreed that the only disposition available to the Court is to discharge the Appellant pursuant to s. 5 of the CMIA.
15 Having had the opportunity to consider the matter, the contention of the Appellant as to the disposition of this appeal, which is agreed to by the respondent, is, in my view, correct.
16 I must express my concern that charges of this seriousness, with the potential to harm other members of the community, were ever the subject of summary jurisdiction. Section 29 of the Criminal Procedure Act 2009 (Vic) sets out the matters which must be considered by the Magistrates’ Court before granting summary jurisdiction. In particular, subsection (a) obliges a Magistrate to have regard to the seriousness of an offence, including (i) the nature of the offence and (iii) whether the offence forms part of a series of offences being alleged against the accused. In addition, subparagraph (d) of that section enables a Magistrate to have regard to “any other matter that the Court considers relevant.” In the context of this case, one might have thought that it would be relevant to take into account the potential harm to members of the community from sequential lighting or attempts to light fires of other persons’ property.
17 The CMIA, which came into operation in 1997, does not give a Magistrate a power to make supervision orders where an adult accused person is found to be suffering from a mental impairment, as is the case with the County Court exercising its own jurisdiction. It is now well over two decades since this legislation came into force. The criminal offences that could be heard and determined by the Magistrates’ Court back in 1997 were governed by Schedule 4 of the Magistrates’ Court Act 1989 (Vic). The extent of that jurisdiction was limited compared to that which subsequently has been very significantly broadened by the Criminal Procedure Act 2009 (Vic). It would seem that it is in the community’s interest that the legislature review the powers of a Magistrate under the CMIA in the light of this increased jurisdiction. In this regard, I note that, although the explanatory memorandum of the CMIA did not explain why Magistrates were not given the power to grant supervision orders and the second reading speeches also made no mention of this, it is tolerably clear that the background to the policy enshrined in s. 5 is that the relevant parliamentary committee did not consider the offences with which the Magistrates’ Court were likely to deal to be sufficiently serious. In particular, the Review of the CMIA: Report (June 2014) by the Victorian Law Reform Commission (‘VLRC’) refers to the view of the Community Development Committee’s Inquiry into Persons Detained At The Governor’s Pleasure in 1995. It notes that the Committee did not consider that Magistrates required a power to make supervision orders “…because it considered that offences heard in the Magistrates’ Court were less serious and therefore did not warrant the kind of treatment and supervision that would be required by someone who committed a more serious offence. The Committee expressed doubt that the supervision regime proposed (that was subsequently adopted by the CMIA) would be suitable for people charged with summary offences.”[1]
[1]Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Report (June 2014), 135 at [5.55]
18 It is clear that, once a Magistrate has granted summary jurisdiction, the defendant has the entitlement to have relevant charges heard summarily and it would be improper for there to be a direct indictment filed in the County Court in order to enliven this Court’s power to make a supervision order in the event that a mental impairment defence were to be made out.[2]
[2]Maya (a pseudonym) v DPP [2019] VSCA 117
19 The circumstances of what transpired in the Magistrates’ Court in this particular case are unknown to me. Accordingly, I make no comment about these circumstances. However, the current provision, s. 5, clearly leaves open potential scenarios of abuse where a defence of mental impairment is not raised in relation to an indictable offence sought to be heard summarily for fear that a Magistrate would not exercise his or her power to determine the matter summarily. Indeed, during the VLRC’s inquiry into the CMIA, it was raised during the consultation process with Victoria Legal Aid and the Shepparton Magistrates’ Court that an accused person initially charged in the Magistrates’ Court with an indictable offence triable summarily may not choose to raise a possible defence of mental impairment for fear that the Magistrate may uplift the charge to the indictable stream of cases, instead of giving a sentence which, in all likelihood, would avoid the imposition of imprisonment. The report states:
“To avoid the onerous process and supervision regime in the higher courts, lawyers often decide not to rely on the defence of mental impairment in the Magistrates’ Court, in the hope of having their client’s mental condition considered in sentencing.”
It was then further noted, from the submission of the Criminal Bar Association:
“The fear of CMIA proceedings, their delay, costs and the perception of onerous outcomes militates against them being pursued. This coupled with the attraction of a lenient sentence (under Verdins) is often overwhelming. This often results in Court outcomes that do not reflect real criminality – and in some cases are effectively discriminatory and unjust.”
20 In my view, the restricted power of the Magistrates’ Court carries with it a real risk that the community may not be protected in certain cases. It is common knowledge that our mental health service in Victoria is heavily burdened and under-resourced. To say that a person like the Appellant in this case can be managed in the community does not necessarily alleviate the risk to which I have alluded. Indeed, it is clear from the material filed in this case that, since being diagnosed with schizophrenia in 2007, the Appellant had a history of non-compliance with anti-psychotic medication. In a Mental Health Advice and Response Service report to Dandenong Magistrates’ Court by Deborah Kendall, Senior Psychiatric Nurse, dated 14 January 2019,[3] it is noted “she has had sporadic compliance with medication over the years. She reports that she stops it because it makes her sleepy and she cannot work. At the time of the offending, she had ceased her anti-psychotic medications.”
[3]Part of Exhibit “5”
21 In his report, Dr Owens also recorded a history of persistent psychiatric symptoms with relapses in the context of non-compliance with anti-psychotic medication.[4] He noted that the subject offending occurred in the context of the Appellant having ceased her medication. Subsequently, after the offending, she was placed on a Compulsory Treatment Order which has now lapsed.[5] It is of concern that, subsequent to this offending, it is noted by Dr Owens that “Ms Ahmadi was admitted to Warrnambool Psychiatric Unit on 16 August 2019 in the context of having been found by police in her stationary car with the hazard lights on, in a confused state. She had ceased her depot anti-psychotic treatment two months previously.”[6] I here note that this cessation of medication subsequent to the subject offending occurred at a time whilst Ms Ahmadi was ostensibly continuing to see a psychiatrist at Pakenham Community Mental Health Centre as well as her psychologist, Semra Dermaz.[7]
[4]Exhibit “1” at paragraph 61
[5]The Order was apparently operative from 7 September 2018 to 5 October 2018.
[6]Ibid at paragraph 58,
[7]See Exhibit “1” at paragraph 53 and Report of Beth Matthews, Case Manager, Dandenong Community Correctional Services (June 2019)(Exhibit “3”)
22 Although the Appellant may have good intentions of complying with her medication, she has a well established risk factor of non-compliance. This is not uncommon with people who suffer psychotic symptoms who, either do not like the side effects of their medication, or develop a belief that they no longer need it. I have real concerns that, as in the past, Ms Ahmadi will not be well monitored in relation to her compliance with medication. Indeed, Dr Leon Turnbull, occupational and forensic psychiatrist, who provided a psychiatric report, dated 17 June 2019,[8] stated “consistent with the collateral psychiatric reports provided, Ms Ahmadi described a snowball of dysfunction and difficulty through 2018.”[9] He went on to note that she had had four psychiatric hospitalisations, two of which were in 2018 and stated:
[8]Exhibit “2”
[9]Ibid p. 1
“I read through her psychiatric records and I note her contact with the mental health service through 2018. With the benefit of hindsight, it does seem that it was unwise to discharge this woman from their service prior to the offending in September 2018. Given her financial constraints, less than stellar mental state, inadequate living arrangements, and having overdosed on risperidone, I think it was a far cry to expect this lady to arrange her own private psychiatric consultation, ongoing psychotropic prescriptions, and remain psychiatrically well. It was an unwise move at best.”[10]
Dr Turnbull stated that, in his opinion, “there is a realistic risk of relapse.” He then concluded his report as follows:
“Having reviewed the materials from Monash Health, this lady should not have been discharged from their service in 2018, and the offences could have been prevented had she been followed up adequately. A simple survey of her accommodation, financial, and social situation, combined with her being less than psychiatrically well, would, for any sensible clinician, see the need for ongoing treatment with a community mental health service. The expectation that she would have arranged her own mental health follow up with appropriate prescription, and the costs of that, were entirely unrealistic.
I do not say this as any point of advocacy, rather, as an impartial observer whose duty is to the Court, and is also conscious of the effects of this lady’s offending on the community, that last year, this lady was failed by psychiatric services, and the effects on her and the victims could have all been prevented with simple, ongoing psychiatric treatment through case management and appropriate medication.”
[10]Ibid, pp. 3-4
23 Clearly, Dr Turnbull’s anticipated risk of the Appellant relapsing by ceasing her medication was realised in August 2019, the incident in Warrnambool to which I have previously referred. Ms Ahmadi has been failed by the Mental Health Service in the past and it is foreseeable that she will again cease her medication, develop psychotic symptoms and potentially place herself and other members of the community at risk. The provision of s. 5 of the CMIA renders the Court, while exercising the jurisdiction of the Magistrates’ Court, powerless to protect her and the community from this risk.
24 I consider it appropriate that my remarks should be made available to the Attorney-General for the State of Victoria, the Director of Public Prosecutions, the Chief Magistrate and the Executive Director of the Legal Services Department of Victoria Police.
25 The orders of the Court are as follows:
1. That Charge 4 be recorded in the Court record as an Attempted Criminal Damage by Fire (Arson) pursuant to s. 321M of the Crimes Act 1958 in lieu of a charge of Arson as appearing in the Magistrates’ Court record.
2. That the Orders of the Magistrates’ Court at Dandenong of 15 January 2019 be set aside.
3. That, pursuant to s. 5 of the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (Vic), the Appellant be discharged on all charges.
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