Alagendram v The Queen

[2016] NSWDC 279

District Court

New South Wales

Medium Neutral Citation:

Alagendram v R [2016] NSWDC 279

Hearing dates:

6 - 7 September 2016

Date of orders:

07 September 2016

Decision date:

07 September 2016

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Minimum initial disqualification period pursuant to s 211(1)(a) and the minimum interlock licence period 211(1)(b) set aside

 

In lieu thereof an interlock exemption order pursuant to s 212 imposed

 

Appellant disqualified from driving for a period of 2 years and 6 months

 

Section 225 of the Road Transport Act 2013 applies

 Otherwise the appeal is dismissed

Catchwords:

CRIMINAL LAW – Appeal against severity of sentence – Application under Mental Health (Forensic Provisions) Act 1990, s32 – Whether appellant satisfied requirements of s 32(1)(b) – Whether appellant’s driving with high range PCA explicable by his mental illness (PTSD and/or Major Depressive Disorder) – Mandatory interlock licence order set aside and replaced with interlock exemption order where appellant had disposed of his vehicle and had no intention of driving again

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990
Road Transport Act 2013

Category:

Principal judgment

Parties:

Kamaleswaran Alagendram (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

In person (Appellant)
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/4007

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Burwood Local Court

Jurisdiction:

Criminal

Date of Decision:

22 February 2016

Before:

Trad LCM

File Number(s):

2016/4007

Judgment

1. HIS HONOUR: This is an appeal against a sentence imposed by Magistrate Trad sitting in the Local Court at Burwood 22 February 2016. The appellant had been served with a field court attendance notice to appear before that Local Court on 2 February 2016. The matter became before Magistrate Trad on 22 February 2016 when the appellant made an application under s 32 of the Mental Health (Forensic Provisions) Act 1990. Her Honour rejected that application and then sentenced the appellant but on 29 February 2016 the appellant filed a notice of appeal. The appellant repeats the application he made to Magistrate Trad that he be dealt with pursuant to s 32.

2. The facts of the offence are disturbing. The appellant was charged that at about 4.30pm on 20 December 2015 at Homebush West he did drive a motor vehicle, AH 85 YH, on a road, namely Tavistock Road, whilst there was present in his breath or blood a high range prescribed concentration of alcohol. The reading recorded was 0.254. About that time on Sunday 20 December 2015 the appellant was driving his green Toyota Avalon sedan registered number AH 85 YH in an easterly direction along Tavistock Road in Homebush West. About 16 metres west of the intersection of Tavistock Road and Hampstead Road the appellant caused his vehicle to collide with the offside passenger and driver’s door of a parked unoccupied blue Holden Barina. The blue Holden Barina sustained moderate damage to both offside doors.

3. Despite colliding with the blue Holden Barina, the appellant continued to drive his green Toyota Avalon in the same easterly direction for a further 30 metres on Tavistock Road. At that point his vehicle collided with the offside doors of another parked and unoccupied vehicle, a silver Toyota Kluger. That vehicle sustained major damage to the rear offside door and moderate damage to the driver’s door.

4. Despite colliding with the silver Toyota Kluger, the appellant continued to drive in an easterly direction along Tavistock Road for a further ten metres when he collided with the rear of a parked white Mazda CX7. At the time of the collision the white Mazda CX7 was occupied by its driver, another passenger and a four month old infant. As a result of that collision the white Mazda CX7 sustained moderate damage to its bumper bar.

5. Despite colliding with the white Mazda CX7 the appellant continued to drive his green Toyota Avalon in the easterly direction for a further 20 metres where he reached the intersection of Tavistock Road and Hampstead Road. At that intersection the appellant turned left into Hampstead Road. By this time the driver of the white Mazda CX7 had taken off in pursuit of the appellant’s vehicle. The white Mazda CX7 caught up with the green Toyota Avalon only when the green Toyota Avalon slowly came to a halt, being unable to continue further because of damage sustained in the three collisions in which it had been involved.

6. The driver of the white Mazda CX7 stopped his vehicle behind the appellant’s vehicle about 20 metres north of the intersection of Tavistock and Hampstead Roads. The driver of the white Mazda CX7 alighted from his vehicle and ran to the appellant’s vehicle where he removed the car keys from the ignition and asked the appellant to get out of his car. The driver of the white Mazda CX7 then called the police. A short time later the police attended the scene and spoke with the driver of the white Mazda CX7 and with the appellant. The appellant was unsteady on his feet and claimed to have no understanding of the English language. He provided to the police a Sri Lankan driver’s licence in his name. The police by their inquiries ascertained that the green Toyota Avalon was registered to the appellant. A bystander who spoke the Tamil language offered assistance and, using that person as an interpreter, police arrested the appellant and took him to Auburn Police Station for the purpose of undergoing breath analysis. The breath analysis returned the reading of 0.254 grams of alcohol in 210 litres of breath.

7. The collisions in question all happened in the suburb of Homebush West which was the suburb in which the appellant resided. The police in question were from the Flemington Police Station. The appellant was then taken to a local hospital by the police, having been “scheduled” by them on account of his expressing suicidal ideation. There is a two page computer generated note made at the local hospital. That records that the appellant was a 45 year old man who presented both with suicidal ideation and intoxication. The further history goes on to say this:

“Patient was brought in scheduled by police for suicidal ideation. Had four beers today and then drove on the road in his car, reports he had a car accident where his car hit into the curb. Denies any suicidal ideation at the time or currently. Breath tested an alcohol level 0.25.

Reports he has been depressed recently and has had 16 sessions with counsellor. Misses family who are overseas in Sri Lanka.

Nil other recent stressors reported.

Nil medical issues or injuries reported.

Medications nil regular.”

The note contains a social history. That recorded that the appellant lived alone, that his family were is Sri Lanka and that he was a “regular drinker” of alcohol. On examination, although the appellant was alert, he appeared to the examiner to be intoxicated. He was kept in the hospital overnight and in the following morning was reviewed by the Psychiatric Registrar. At that time he denied suicidal thought and denied any thoughts of harming anyone else and denied any thought of harming himself. He wished to go home and was allowed to do so.

8. It ought to be obvious from what I have already said that the appellant was born in Sri Lanka. He is of Tamil ethnic origin. In evidence is a report dated 3 May 2016 from Ms Rebecca Kortge, a clinical psychologist. That report was clearly not before the Local Court. It contains a fairly lengthy history. However there are some inconsistencies in that history. The appellant was born on 22 February 1970 in Trincomalee in the eastern province of Sri Lanka. He was the fifth of eight siblings. His father was a farmer. He had a very close relationship with each of his parents but his father died, unfortunately, on 8 August 2015. The appellant lived in Trincomalee with his family for 16 years until 1986. He then went to live in the Vanni area in the northern province of Sri Lanka between 1986 and 1990. In 1990 he returned to Trincomalee. In that same year he married his wife in Trincomalee.

9. The psychologist’s history continues thus:

“He told me there were ‘problems when we got married’ as his wife was from ‘a different [ie lower, fishing] caste’, so his mother was ‘angry’. He indicated these problems had since been resolved, such that ‘my wife visits my mother once a month’, despite her own mental health issues. He reported his wife was a nurse for 15 years until she was deemed ‘medically unfit’ for work as a result of her nerve dysfunction”.

10. In Trincomalee the appellant had ten years education. He stopped his education in order to move to the Vanni area, that move being due to the civil conflict between the Sri Lankan army and the Tamil separatists in northern Sri Lanka. The appellant was able to return to Trincomalee with the advent of an Indian peace-keeping force. The history then tells me that the appellant returned to the Vanni area from mid-1990 to 2006 where he was a farmer. However, when the conflict between the Sri Lankan army and the Tamil separatists worsened, it was necessary for the appellant to go into hiding between 2006 and 2009. However, further on the same page of the same report, it is stated that the appellant was in hiding not between 2006 and 2009 but between 2001 and 2009, a period of nine years. The conflict in history cannot be determined because the appellant chose not to give any evidence.

11. The conflict stopped in 2009 and the appellant was then imprisoned by the Sri Lankan army. The appellant referred to that change in status as a kidnapping. According to the appellant, he was tortured and sustained serious personal injuries whilst in the Sri Lankan army camp and he escaped in August 2009. He then moved to Colombo and stayed with his wife and mother‑in‑law until 29 August 2009.

12. On that day he left Sri Lanka travelling by aeroplane to Malaysia, but, as he did not have a visa to enter that country, he then travelled to Thailand. Subsequently he travelled from Thailand to Malaysia again by aeroplane. He lived in Malaysia for one year in 2010 and then travelled to Indonesia by aeroplane living there for nine months in 2011. He then attempted to travel by boat to Australia in December 2011. According to the history given by the appellant to the psychologist, the appellant was on the boat for two days and was within 90 kilometres of mainland Australia when the Royal Australian Navy intervened and towed the boat back to Christmas Island. The appellant was then detained on Christmas Island for 16 days before being transferred to an immigration transit accommodation centre in Brisbane.

13. The history tells me that the appellant was found to be a refugee by the Refugee Review Tribunal in September 2012 but the appellant has not been granted any permanent visa to reside in Australia. A decision of the Administrative Appeals Tribunal made on 22 January 2016 was before the Local Court and is before me. That decision was in response to an application for review of a decision of 13 January 2016 made by a delegate of the Minister for Immigration cancelling the appellant’s subclass 050(Bridging)(General) visa pursuant to s 116 of the Migration Act 1958 (Commonwealth). The Tribunal set aside that decision and substituted it with the decision not to cancel the same visa. Accordingly, the appellant was at the relevant time and remains on a bridging visa justifying his visits in this country. That bridging visa allowed the appellant to work. Up until the commission of the offence now in question the appellant was working as a cleaner. He was permitted to do so. He was remitting a part of his income to his family in Sri Lanka.

14. There was a small amount of evidence of the state of health of the plaintiff’s eldest son and wife from Sri Lanka. There was a ‘Diagnosis Ticket’ for an admission to an institution between 3 January 2016 and 6 January 2016 for the appellant’s eldest son. He had made an attempt to take his own life. That is the allegation. However, the ‘Diagnosis Ticket’ tells me that there were no signs of depression, no need for treatment and no further follow up was required. In other words at the time the appellant’s eldest son was discharged from the institution he had no need for further psychiatric treatment. However it is to be noted that the period in question was after the offence now in question and during the period immediately prior to the revocation by the Minister of Immigration of the appellant’s visa.

15. The other piece of medical evidence from Sri Lanka concerns the wife of the appellant. The document is dated 14 January 2016, and is from a female medical practitioner. The diagnosis offered by the medical certificate is ‘arthritis’ which is hardly a nerve dysfunction. According to the female medical practitioner from Sri Lanka she had been treating the appellant’s wife for two years prior to 14 January 2016.

16. I turn now to the appellant’s mental health. He came under the care of Ms Rebecca Kortge, clinical psychologist, on 13 October 2014. The diagnoses offered by Ms Kortge are post-traumatic stress disorder (PTSD) and a Major Depressive Disorder. It might have been more accurate for her to have diagnosed an episode of a Major Depressive Disorder. It is problematic as to whether the appellant was suffering from two psychiatric illnesses or only one which could fit into the diagnostic criteria of either PTSD or a Major Depressive Disorder. In any event, it is clear, and it is common ground between the appellant and the Crown, that at the time that the appellant committed the offences now in question he was suffering from the symptoms of either PTSD and/or Major Depressive Disorder. In other words he was suffering from a ‘mental illness’ within the meaning of s 32(1)(a)(ii) of the Mental Health (Forensic Provisions) Act 1990. Furthermore, the diagnoses offered were not sufficient to categorise the appellant as being ‘mentally ill’ within the meaning of the Mental Health Act 2007. In other words the appellant at the time he committed the offence now in question fell within s 32(1)(a) of the Mental Health (Forensic Provisions) Act 1990.

17. The question which arises on this application is whether the appellant satisfies the requirements of s 32(1)(b) of the same Act. That requires that the appellant:

“on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law.”

If the appellant satisfies that provision then the Local Court and this Court on appeal from the Local Court may take the action set out in subs (2) and (3) of s 32 of the Mental Health (Forensic Provisions) Act1990. It has been held that the seriousness of the offence is a relevant matter to be taken into account when determining whether to apply s 32. It has been held that the section involves a discretionary decision in which the Magistrate is permitted latitude as to the decision that might be made, a latitude confined only by the subject matter and the object of the Act. In essence the provision allows for treatment rather than punishment and the treatment can only be enforced by the Court for a period of six months. It is to be also noted that this Court, when exercising the primary jurisdiction of sentencing, and the Supreme Court, when exercising its primary role of sentencing have no power to deal with an offender pursuant to s 32. In other words, s 32 applies only to proceedings in the Local Court, obviously summary offences, and not matters which must be dealt with on indictment. That alone indicates that s 32 is not to be applied in serious matters and clearly supports the interpretation, which I have already cited, that the gravity of an offence is a matter to be taken into account.

18. This offence occurred because the appellant drank a large amount of alcohol and then chose to drive his vehicle on a road. Is this offence in some way related to the appellant’s mental illness? The appellant, as I have stated did not give evidence in the Court below or in this Court. The only explanation for the appellant’s conduct proffered in the evidence before me is a history contained in Ms Kortge’s report of 3 May 2016. That report contains this history on p 11:

“I asked Mr Alagendram for clarification about what happened on 20 December 2015, and he told me that he had been at the market with friends and then to their home to commemorate a relative who had died by drowning in Sri Lanka. He reported receiving a call from his mother in law, who told him his wife’s legs had suddenly become senseless, and so she had been admitted to hospital. He told me that he did not have his Skype phone with him, so rushed away without telling his friends anything, so he could drive and call his wife on his Skype phone. He described being ‘blind in my mind’ and reflected his subsequent shock at his own behaviour, given he was usually the designated driver and always encouraged other people not to drive if they had been drinking. [He] reported his friends had also voiced confusion and shock as he was suddenly ‘so different’ and ‘panicked’.

Mr Alagendram reported he usually felt ‘dull, tired and low mood’ after receiving calls about his family’s situation, however that this time was different and thought this may have been as he was drinking.

Mr Alagendram reflected his sadness at his wife trying to protect him by asking her mother not to call him. However, her mother called him despite this advice, as she was worried he would become upset if she did not call him. He reported his wife had now been discharged from hospital, and was still attending regular treatment for her condition.”

As I have already pointed out the certificate from the female practitioner in Sri Lanka given after 20 December 2015 merely refers to a diagnosis of “arthritis” and does not say anything about a hospital admission on or about 20 December 2015.

19. However, those who take alcohol can sometimes be taken unaware by some emergency and be tempted to drive whilst under the influence of alcohol. That is a risk which drinkers take. 20 December, a Sunday in 2015, was the Sunday prior to Christmas in Australia and is often a time when people attend Christmas parties and the like and there is friendship, merriment, family get‑togethers and the taking of food and drink, including alcohol, to create a happy time for those participating in a Christmas party. Someone could be attending a Christmas party, and drinking, with the intention of not driving home, but for example catching a cab or taking a lift with somebody else, or even walking home, but being given news of some emergency such as the sudden collapse of a parent, an injury to a child, an emergency at home such as the outbreak of fire or a burglary, and be tempted to attend to the emergency as quickly as possible. Here, on the history given by the appellant to Ms Kortge, he was attending what we might regard as a “wake” commemorating a relative who had died by drowning in Sri Lanka, and whilst commemorating this relative, received unexpected news and decided to drive home quickly to contact his wife on his Skype phone, risking the consequences of the fact that he had been drinking.

20. As recorded in Magistrate Trad’s reasons, the appellant told the Local Court through his solicitor, Ms Elbaba, that he just wanted to get home, no matter what it took. There is no causal nexus, in my view, between the appellant’s mental condition or mental illness and the criminal conduct involved. The appellant took a grave risk. If those persons who were seated in the white Mazda CX7 had been injured, whether it were the driver, his passenger or the four‑month‑old infant, the question would be how long ought the full-time prison term be, and not whether he should be dealt with under s 32. If he had severely injured a passenger in a vehicle or, for example, a pedestrian whom he knocked down whilst driving with such a large amount of alcohol in his system, he would be facing a term of imprisonment of a number of years.

19. The evidence about the plaintiff’s alcohol intake is also problematic. I note that the appellant told those at the hospital that he had consumed “four beers” on 20 May 2015. The Australian Government has issued from time-to-time a standard drink guide. That tells a drinker the amount of alcohol in usual servings of drink. For example, a full-strength beer has in a schooner glass 1.6 standard drinks, a can or 375 millilitre bottle of full-strength beer contains 1.5 standard drinks. The alcohol content of mid-strength beer and light‑strength beer is obviously less. However, if the appellant consumed four cans or 375 millilitre bottles of beer he would have consumed six standard drinks. To reach 0.05, the bottom of the low range prescribed concentration of alcohol, the authorities constantly advertise that one need only consume three standard drinks. Accordingly, six standard drinks, if consumed in one hour, would give a blood alcohol reading of 0.10. To reach a blood alcohol reading of 0.254 the appellant would have to have drunk at least 15 standard drinks of alcohol or ten cans or ten 375 millilitres of full-strength beer in one hour. In other words, the appellant’s blood alcohol reading indicates that he consumed a very large amount of alcohol. The exact amount cannot be ascertained without ascertaining the period over which the alcohol was consumed. The appellant gave this history of his alcohol consumption to Ms Kortge.

“Mr Alagenbrah did not report as significant history of drug or alcohol use. I asked Mr Alagenbrah about his usual drinking habits and he reported he did not drink much or regularly, as he did not drink at home or on his own. He clarified that he only drank socially, and rarely went out socially as he usually worked on weekends.

Mr Alagenbrah told me if he wasn’t working, he tended not to have the energy, time or finances to be in the mood to go out socially, let-alone drink.”

However that history must be contrasted with the history obtained at the hospital which was that he was a “regular drinker” of alcohol. A person who is but a social drinker of alcohol would find it difficult to stay awake with a blood alcohol reading of 0.254. That the appellant had such a high alcohol reading is consistent with his being a practiced, seasoned or experienced drinker.

22. I therefore have gave difficulty in accepting the history concerning alcohol consumption contained in Ms Kortge’s report. I accept that in the hospital records reflect the true position that the appellant was a regular drinker of alcohol, that he was drinking heavily on 20 December 2015 and faced with a sudden emergency decided to take a course which was extremely ill advised.

23. It is not suggested in the current case that the appellant took to drinking a large amount of alcohol, for example, to self-medicate because of the misery caused to him by the exigencies of his life and his concern about his family members in Sri Lanka or his concern about his being murdered were he to return to Sri Lanka. Rather the appellant went out drinking with friends to commemorate the death of a relative who died from natural causes, drowning, back in Sri Lanka. The drinking had nothing to do with the personal circumstances of the appellant. Putting the appellant on a treatment plan for a period of six months would do nothing to obviate the risk of the appellant’s offending again in the like manner. The treatment which he has been undergoing since September of 2014 is because of the vicissitudes of his life up until that time and trying to allow him to cope with his PTSD or a Major Depressive Disorder or both. That treatment was not dealing with the appellant’s alcohol intake nor poor decision making when under the influence of alcohol. Like the learned Magistrate below I am not satisfied that this is an appropriate case to apply s 32. The only thing that might be thought to be a “treatment plan” is the recommendation by Ms Kortge continue to attend upon her for treatment which is what the appellant wished to do in any event as he finds her treatment helpful and finds it helpful to talk and learn strategies to help him manage symptoms.

24. The learned Magistrate pointed out that there was no particular treatment plan but did advert to that which I have just adverted to. In her reasons the Magistrate said this:

“Of course a serious offence, that circumstances itself will be one of the many factors that the Court will take into consideration in the weighing exercise which is well documented and referred to in the authorities and in particular from [Director of Public Prosecutions v] El Mawas [2006] NSW CA 154:(2006) 66 NSW LR93). It is a factor to take into consideration.

The test to be considered by the Court is what is in the interests of the community. Sometimes that coincides exactly with the wishes of the defendant. Sometimes the wishes of the defendant and the interests of the defendant is exactly the same thing, but not always, and particularly the nature of an offence to be taken into consideration, not so much that it is seriousness and therefore as a matter of principle would not be dealt with - that is not a principle recognised at law in matters of this nature. What it is, is what the type offence involved; what has occurred; and it is in the public interest that he be dealt with in accordance with the law or under s 32.”

A little later her Honour went on to say this:

“Getting home to somewhere in Sydney [,] it is unclear why that was going to make any particular difference other than impose a particular risk that he did in fact pose to other people using the road on the day in question. Now the main reason for me is that if someone cannot negotiate, cannot discern because of a particular level of distress, their inability and inappropriateness of being not only in a vehicle but in operation of that vehicle and to continue to drive in those circumstances is what in my view raises a particular concern. And in my view a disposal pursuant to s 32 and I address that issue because of the nature of the conduct that has occurred on this occasion as a result of the mental condition [is] one that has been as put directly or very specifically at risk members of the public, other road issues at this particular time in question.”

25. The learned Magistrate did not act on any wrong principle. She clearly was concerned about the significance of the crime committed by the appellant. Furthermore close analysis shows that the crime committed by the appellant could have occurred if he had been born in Australia and was a happy man, living with his family, who had been to a Christmas party but panicked after he had drunk a large amount of alcohol. It had nothing to do with the vicissitudes of life which had befallen him in his native land or subsequently. It merely had to do with the fact he drank too much alcohol and then chose to drive in what he considered an emergency, but, whether there was a real emergency or not, is far from being established in my view. I, like the Magistrate do not accept that this is an appropriate case to deal with under s 32, both because of the severity of the crime and the fact that it is not explicable by the appellant’s mental illness, but should be dealt with according to law.

26. The only complaint then made about the sentence is a technical one. The sentence imposed was a s 9 bond to be of good behaviour for a period of two years, a minimum disqualification period of six months pursuant to s 211(1)(a) and the minimum interlock license period pursuant to s 211(1)(b) for a period of two years, and s 225 of the Road Transport Act was to apply.

27. It ought to be clear from the facts that I have recited that the appellant’s car became undrivable on 20 December 2015. He has subsequently disposed of it. He has no intention of driving it again. Therefore the Magistrate ought to have imposed an interlock exemption order pursuant to s 212 and on the basis that the appellant no longer had access to a vehicle and ought to have imposed an appropriate disqualification period.

28. I had thought to impose the automatic disqualification period of three years and mentioned that to Ms Elbaba yesterday afternoon at about 4.15pm. However, I failed to give her a Parker warning because under the orders made by the learned Magistrate, there was, in essence, a disqualification period of two years and six months but because there has been no Parker warning to increase the disqualification period to three years, would infringe the principle in Parker’s case.

29. Accordingly, I intend, as requested, to set aside the mandatory interlock orders and to make an interlock exemption order and disqualify the appellant from driving for two years and six months. For those reasons I set aside the minimum initial disqualification period pursuant to s 211(1)(a) and the minimum interlock licence period pursuant to s 211(1)(b). In lieu thereof I make an interlock exemption order pursuant to s 212 on the basis that the appellant no longer has access to a motor vehicle. I disqualify the appellant from driving for a period of two years and six months. Section 225 of the Road Transport Act applies. Otherwise the appeal is dismissed.

30. OLENDER: Your Honour because the appellant had already entered into the s 9 bond there’s no requirement for him to go to the Registry to enter into a new bond.

31. HIS HONOUR: That is correct.

32. OLENDER: As the bond will continue, I just wanted to say that as I mentioned to Mr Interpreter this morning that it maybe necessary to go over to the Registry but it’s not.

33. HIS HONOUR: It’s not, no.

34. SPEAKER: Because he has already signed s 9 bond in the Local Court.

35. HIS HONOUR: Correct and I haven’t set it aside, so he’s still bound by it.

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Decision last updated: 02 November 2016