Apprehended Violence Application Det Richard Broome v Tony Liristis; R v Tony Liristis; R v Tony Liristis; Apprehended Violence Application NSW Police for Tares Jahshan v Tony Laristis

[2011] NSWDC 40

District Court

New South Wales

Medium Neutral Citation:	Apprehended Violence Application Det Richard Broome v Tony Liristis; R v Tony Liristis; R v Tony Liristis; Apprehended Violence Application NSW Police for Tares Jahshan v Tony Laristis [2011] NSWDC 40
Hearing dates:	14 June 2011
Decision date:	15 June 2011
Jurisdiction:	Criminal
Before:	Judge Toner SC
Decision:	Application for an order pursuant to s.32 of the Mental Health (Forensic Provisions) Act 1990 refused
Catchwords:	Mental illness - Section 32 of the Mental Health (Forensic Provisions) Act 1990 discretion.
Cases Cited:	Confos v The Director of Public Prosecutions [2004] NSWSC 1159 DPP v El Mawas (2006) NSWLR 93 Mantell v Molyneux [2006] NSWSC 955
Category:	Separate question
Parties:	R Tony Liristis
Representation:	Counsel: Mr Troy Edwards (Appellant) Solicitors: Mr J Stainer (Crown)
File Number(s):	2008/00150358 2009/00130049 2009/00134853 2009/00167068

JUDGMENT

1. The appellant appeals against convictions and the imposition of an apprehended violence order. The matters were heard by two Magistrates in the Local Court. The first series of convictions were those found by her Honour Magistrate Fleming on 18 June 2010. He confronted a number of charges before her Honour but was convicted of the following offences: -

(a) An offence of stalking/intimidation contrary to s.13(1) of the Crimes (Domestic and Personal Violence) Act.

(b) Publishing an indecent article contrary to s.578C(2) of the Crimes Act.

(c)   Using a carriage service to menace or harass contrary to s.474.17 of the Criminal Code Act (Commonwealth).

(d) Publication of indecent article contrary to s.578C(2) of the Crimes Act; and

(e) A further offence contrary to s.13 of the Crimes (Domestic and Personal Violence) Act.

1. For the moment I do not propose to delve into the evidence before her Honour, save to say that her Honour was satisfied beyond reasonable doubt in relation to each of them.

1. On 8 July 2009 an apprehended violence order was made against the appellant by his Honour Magistrate Heilpern.

1. In this Court he contests the making of that order.

1. Clearly the most significant of the matters before me are his appeals against convictions by Magistrate Fleming.

1. Before the substantive appeal commenced Mr Edwards, on behalf of the appellant, made an application that I ought to deal with the appellant pursuant to the provisions of s.32 of the Mental Health (Forensic Provisions) Act 1990.

1. Subsections 1 reads as follows:

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and

(b) that, 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,

the Magistrate may take the action set out in subsection (2) or (3).

1. Relevant to this application is also s.32(4) which reads as follows:-

A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

1. The appellant maintains his innocence and wishes to proceed with his appeals against conviction and wishes to maintain his application that I ought set aside the apprehended violence order which was made by Magistrate Heilpern.

1. If I accede to his application it is proposed on his behalf that I make orders pursuant to s.32(3). Subsection 3 is as follows:-

The Magistrate may make an order dismissing the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both, or

(c) unconditionally.

1. What is anticipated is that I make orders in accordance with the recommendations contained in a report of Dr Allnutt, forensic psychiatrist, whose report is before me as Exhibit 1, which suggests a treatment plan. In other words, an order pursuant to subsection 3(b) of the Act.

1. The powers that I have on appeal are the same as those conferred upon the Magistrate at first instance. (See the Crimes (Appeal and Review) Act 2001 (s.28(2)).

1. Section 32 vests a discretion in the Court but it is important to note that an order can be made "... at any time during the course of the hearing of proceedings before a Magistrate ..."

1. As is clear from s.32(1)(b) I am entitled to take into account the evidence as it unfolded before Magistrate Fleming. Further s.36 reads:-

For the purposes of this Part, a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself.

1. At this stage of the proceedings the convictions are good thus in my opinion I can and do have regard to the findings of fact and on credit made by her Honour.

1. In the DPP v El Mawas (2006) NSWLR 93 Justice McColl with whom the other two members of the Court agreed, concluded that it is appropriate to have regard to the seriousness of the offence when considering whether to proceed pursuant to the provisions of s.32. Her Honour agreed with Howie J in Confos v The Director of Public Prosecutions [2004] NSWSC 1159.

1. Spigelman CJ in El Mawas said at paragraph 6:-

In my opinion, her Honour made no

error. In her ex tempore reasons she took into account considerations that made

it less appropriate "to deal with" the respondent under the Act:

(i) the seriousness of the alleged offences;

(ii) the fact that the alleged offences involved premeditation and planning and that the nature of the mental illness, involving lack of self-control, including impulsivity and an inability to plan, was not manifest on the occasion of the alleged offences

1. The second of those reasons is of significance in this case.

1. Section 32(4) means that an order made pursuant to subsection 3 cannot be construed as meaning that the offences charged against a defendant are deemed to be proved or otherwise. In other words, dismissed. That has no relevance here in that he has in fact been convicted.

1. The legislation, strangely in my opinion, does not require any determination as to whether a defendant is guilty of the offence charged. As was observed, obiter, by Adams J in Mantell v Molyneux [2006] NSWSC 955 at 39 in referring to what was said by McColl JA in El Mawas:

... the provision has a diversionary purpose.... It is clear that, in many cases, an alleged offender might well be innocent of any charge. ...

But, as I say that is not the case here.

1. The evidence as to what, if any, mental illness or condition the applicant endures or suffered either now or at the time he committed these offences is somewhat unsatisfactory. That is no criticism of the medical practitioners or paramedical practitioners whose reports I have.

1. Principally, the applicant relies upon the report of the highly respected Dr Stephen Allnutt.

1. On page 1 of his report the doctor sets out the material that he had available to him beyond his clinical interview with the applicant. That material is as follows:-

1. The Facts

2. A report by Anthony Diment dated 18 August 2008.

3. A report by Dennis Cordato dated 17 August 2009.

4. A report by Dennis Cordato dated 16 September 2009.

5. Document of Incidents that have occurred to Mr Tony Liristis.

1. His report is dated 10 June 2011. Within the body of it he says that he had a clinical interview with the applicant on 7 June 2011.

1. I am told that the proceedings before Magistrate Fleming continued for some sixteen days. I have not been provided with the full transcript but I have some of it and I have her Honour's reasons.

1. In addition to Dr Allnutt's report, I have series of reports; the first two from Dr Idris, a psychiatrist. One of those reports is dated 9 July 2010, which was during the currency of the proceedings before Magistrate Fleming, and I have a report from an Anthony Diment, a psychologist who undertook various psychometric tests of the applicant and his report is dated 18 August 2008.

1. Before I come to Dr Allnutt's important report, I should note that Dr Idris' report seems to me to be somewhat ambivalent in that she says: -

His diagnosis is consistent with major depressive disorder with background of vulnerable personality structure.

1. Mr Diment concluded:-

He currently fits DSM-IV diagnostic criteria for an adjustment disorder (mixed anxiety and depression- chronic and of moderate-severe intensity) and he also fits diagnostic criteria for post traumatic stress disorder (PTSD) largely arising from assaults in March 2006 and 9 June 2008 (this opinion is also consistent with medical, hospital and psychological opinion available to me).

1. I should note that Mr Diment's report was prepared, as I understand it, for other purposes, namely his capacity to continue to prosecute a matter in the Supreme Court which is somewhat different to the tests that are posed by s.32 of the Mental Health (Forensic Provisions) Act 1990.

1. I return to the report of Dr Allnutt. Within it there is a lengthy exposition under the heading - "Accounts of Events Surrounding the Alleged Offence". None of that material seems to extract the versions of events advanced by witnesses who gave evidence for the prosecution in the cases before Magistrate Fleming. In my opinion the version of events is biased to that advanced (and rejected) by the applicant to Magistrate Fleming in the evidence he gave before her.

1. That history was of importance to Dr Allnutt. He said at page 6:

In my view at the time that I saw your client he was manifesting symptoms consistent with post traumatic stress disorder; he provided a history of having been a victim of assault, on a number of occasions but in particular in 2006, 2008 and more recently in 2011; he described symptoms of poor sleep, nightmares which on occasion wake him up, a tendency to social avoidance with restriction in his interests, hyper-vigilance, increased ....response, poor concentration and flashbacks.

1. The doctor noted at page 6:-

The most significant stressor impacting on him at this stage involved estrangement from his family and the consequences of the conviction.

1. It should also be noted, and the doctor does not resile from the proposition that much of the information which forms the basis of the doctor's diagnosis came from the applicant. (See for instance the top of page 7 of Dr Allnutt's report).

1. Dr Allnutt concluded at page 7 of his report:-

Further there is evidence to suggest that the time your client saw me he was suffering from symptoms consistent with a mental illness as defined under Chapter 1 of the NSW Mental Health Act. That is, that he was manifesting symptoms of a severe disturbance of mood but at the time that he saw me he could not be regarded as a "mentally ill person" or "a person with a mental disorder" as defined by sections 14 or 15 of the NSW Mental Health Act.

1. The doctor rejected the proposition that he was suffering from a "mental condition" and found it unlikely that he would be regarded as manifesting a developmental disability.

1. The doctor concluded:-

However, given that he manifests a "mental illness" at the material time of the alleged offence and at the time that he saw me I believe there was reasonable grounds for him to be considered to be eligible under s.32 of the NSW Mental Health (Forensic Provisions) Act.

1. Whilst I have deep respect for the doctor's conclusions that does not resolve the matter in the applicant's favour.

1. In exercising my discretion I must have regard to what was said both by the Chief Justice and McColl JA in El Mawas.

1. It also seems to me that that the doctor's opinion has not been fully informed, namely he did not have available to him all the evidence which was before Magistrate Fleming.

1. There must be a causal relationship in my opinion between the "mental illness" and the offences charged and the circumstances found by the Magistrate as they related to these offences.

1. I am of the opinion that those facts as found are inconsistent with such a nexus for reasons expressed by the Chief Justice in El Mawas .

1. I find that because of the serious nature of the offences, particularly those dealt with by Magistrate Fleming and because that the sophistication and planning involved in some of those offences is inconsistent with the symptoms of the mental illness suggested by Dr Allnutt that it is not appropriate to deal with these matters pursuant to s.32 and that each will be dealt with in accordance with law.

1. Therefore, I am not of the opinion that I ought make orders pursuant to the provisions of s.32 of Mental Health (Forensic Provisions) Act 1990 and reject the application.

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Decision last updated: 16 June 2011