Denise Jane Lee v The Queen

[2020] NSWDC 770

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Denise Jane LEE v R [2020] NSWDC 770

Hearing dates:

8 October 2020

Date of orders:

23 October 2020

Decision date:

23 October 2020

Jurisdiction:

Criminal

Before:

Wass SC DCJ

Decision:

I allow the appeal.

I dismiss the charges and discharge the appellant into the care of Dr O’Dea, with the following conditions:

1. The appellant is to remain in treatment in care of Dr O’Dea or any other qualified practitioner as she may be referred to from time to time; and

2. She is also to remain in the care of her current general practitioner or any other such general practitioner as she may be referred to from time to time.

Catchwords:

CRIME — Appeals — Appeal against sentence — Re-sentence — application under s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) — application under s 20BQ of the Crimes Act1914 (Cth) — charges dismissed

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990 (NSW)

Crimes Act1914 (Cth)

Category:

Principal judgment

Parties:

Denise Jane Lee (Appellant)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
Mr Boulten SC (Appellant)
Mr Higgins (Appellant)

Solicitors:
Lenz Legal (Appellant)
Director of Public Prosecutions (Crown)

File Number(s):

2017/56805

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Crime

Citation:

Unreported

Date of Decision:

18 March 2020

Before:

Magistrate M Barko

File Number(s):

2017/56805

Judgment

1. The appellant appeals against a sentence imposed in the Downing Centre Local Court, following a decision not to accede to an application under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and its equivalent Commonwealth provision; s 20BQ of the Crimes Act1914 (Cth). For ease of reference I will refer to both provisions by reference to s 32.

2. The appellant seeks an exercise of the court’s discretion pursuant to those provisions. Jurisdiction to deal with the matter in that way is accepted. The application is to be dealt with afresh, with me exercising the same powers and functions as the magistrate.

Offences

3. Ultimately the appellant was sentenced in respect of only four matters, having been charged originally with 10 offences. They are:

1. Using a service to menace, harass or offend Mr Holberton for which she received a two year Community Corrections Order with 200 hours of Community Service. The maximum penalty for that offence is 12 months;

2. Intimidating Mr Holberton with intent to cause fear of mental harm, which I believe is limited to mental harm, for which she received a two year Community Corrections Order with 200 hours of community service. The maximum penalty for that offence was two years;

3. Using a carriage service to menace, harass or offend Ms Dempster, for which she received a term of imprisonment of nine months. The maximum penalty for that offence was 12 months; and

4. Using a carriage service to menace, harass or offend Ms Bell, for which she received a two year Community Corrections Order, with 200 hours of Community Service. The maximum penalty for that offence is also 12 months.

4. The first, third and fourth matters are Commonwealth matters.

Procedural History

5. The matter has had a long procedural history. In June 2016, a complaint against the appellant was received by the Health Care Complaints Commission. In December 2016, the Medical Council of New South Wales took over the complaint and suspended the appellant indefinitely from practice as a medical specialist radiologist. NCAT stayed that decision in August 2017. The Medical Council successfully appealed to the Court of Appeal. The matter was remitted to NCAT for further hearing, which took place at the end of November 2017 and by reason of her offending, ultimately the appellant was suspended from 2017. She later obtained work in medical marketing.

6. On 22 February 2017, police conducted a search of the appellant’s premises. In December 2017 the warrant supporting that search was held to be invalid by the Supreme Court. The items were returned under Court order. Police executed a second warrant three days later. The following day the Supreme Court ordered all the property seized to be held by it pending the determination of the validity of the second warrant.

7. What followed was protracted litigation in both the Supreme Court and the Local Court, which was not completed. By 29 March 2019, the prosecution case had not concluded.

8. On 25 September 2019, the appellant gave notice of her intention to pursue the s 32 application. It was heard on 8 October 2019, with the decision being handed down on 10 October 2019 by Barko, LCM who refused the application.

9. Although this is a rehearing without the need to have regard to the reasons of the magistrate, it has been appropriate to record some of the remarks made and the conclusions reached by his Honour.

10. The s 32 application was not opposed by the prosecution, which his Honour found greatly surprising, due to the history of the litigation. Notwithstanding that, the application was dismissed. His Honour, at that time, appeared concerned at the lateness of the application.

11. I did not understand his Honour’s attitude. First, the Act allows for the application to be made at any time and given the nature of such an application, one can readily see why this is so. Second, it is not clear to me how, even in hard fought litigation, it would be surprising for a reasonable and ethical prosecutor, in an adversarial system and where such was the state of the appellant’s mental health at that stage, to form a view that it was appropriate to agree to the appellant being dealt with pursuant to s 32.

12. His Honour observed on 13 February 2020, that it was obvious to any reader of the alleged facts that the appellant had mental health issues. Indeed, by 18 March 2020, his Honour was of the view that there can be no doubt that the appellant was suffering from a mental illness. Having made that determination, his Honour’s opening gambit in his reasons on 18 March 2020, referring to the appellant as “a woman scorned” and using the now regarded as sexist quote from the 1696 Congreve play, ‘The Mourning Bride’ was with respect, inappropriate and tone deaf to the case at hand. However, having made that citation, it ought not be forgotten that whilst the woman referred to in that play is painted as a tragic and evil figure, who would rather murder the man she loves than see a rival marry him, she ultimately committed suicide.

13. Furthermore, his Honour’s repetition of this description of the appellant as “scorned” was, in my view, an unfortunate choice given the way in which it had been used in the media prior to that time, a matter to which I will return.

Objective Seriousness and Relevant Facts

14. Turning now to the offending. I have had regard to the matters set out in the Crown bundle and in particular, the agreed facts, which I incorporate by reference, without the need to repeat, yet again, the offending behaviour. It was canvassed many times in the Local Court and in the media, and I have no intention in giving any further reason to re-open those issues more broadly. They are well-known to the parties.

15. On an application under s 32 I am obliged however, to record my findings as to the characteristics and attendant level of seriousness of the offending. The matter relating to Mr Holberton was one of intimidation. The facts disclosed harassment, rather than anything more. Shortly after the offending Mr Holberton informed police that he held no fears in relation to the appellant. He found her, “more of an annoyance”, and indeed that annoyance is to be tempered by the fact that, from time to time, he responded to the appellant’s communications. At no stage did the appellant threaten him physically or assault him in any way. There is no suggestion in any of the messages, either to him or anyone else, of threats of physical violence.

16. His Honour found that the appellant may have been poorly treated by Mr Holberton and I find that she was. The text messages made that clear. It is no excuse for her offending but, particularly given her mental health condition, it goes a long way to explain it. She was genuine about her belief about Mr Holberton’s shortcomings that she wished to reveal.

17. The offending with respect to Ms Dempster was inexplicable. It was driven by the appellant’s paranoia and social isolation. She was triggered by things that the appellant believed about Ms Dempster and I accept that the appellant genuinely believed she was being publicly mocked in respect of that matter.

18. The offending against Ms Bell was equally inexplicable. It was similarly a consequence of the appellant’s delusions.

19. All of the offending, as protracted, relentless, damaging, malicious and offensive as it was, is to be seen through the prism of the appellant’s situation and, in particular, the very serious mental disorder she suffered, to which I will now turn. Her offending was, I find, caused by her mental condition.

History/Background

20. The appellant is now 41. She was in her late 30s when she committed these offences. She has no criminal record of any kind. She had never come into contact with the criminal justice system prior to this matter and was working, as I have said, as a specialist radiologist. The police had no record of her ever being violent or intimidating in any way, prior to this matter. She has been on strict bail since her arrest.

21. The appellant is extremely bright and hardworking. She ranked fourth in the State in her ATAR results in 1996.

Medical History

22. The medical reports of Dr O’Dea are not challenged. They paint a picture of a very serious mental condition. They are dated 7 October 2019, 11 February 2020 and 7 October 2020 respectively, and I have read them closely.

23. The appellant was diagnosed by Dr Adams as suffering from a major mood disorder, suffering both depression and paranoia. He remarked:

In summary, in my opinion, she presented with symptoms consistent with a diagnosis of major depression, alongside prominent paranoia. I would question the possibility of her paranoid thought processes becoming delusional in form.

24. Such was Dr Adams’ concern that her persecutory ideas might have fluxed into delusional form, that he referred the appellant to Dr O’Dea so that she could be admitted to a psychiatric unit, although at that time, the appellant was reluctant to do so.

25. The appellant was first referred to Dr O’Dea by her general practitioner for review and appropriate treatment. That treatment did not commence until 16 August 2019 and has been complex and prolonged.

26. On 3 October 2019, the appellant was admitted to the Northern Beaches Private Psychiatric Hospital. She was diagnosed with a major mood disorder. She remained an inpatient, at least up until the time of her applications before the Local Court. Following her admission, her mood stabilisation drugs were increased up to eight times the original daily dose before a therapeutic level was obtained. That speaks volumes of the severity of her condition.

27. There is no issue that the appellant suffered a significant deterioration over time, in her mental health. Her vulnerable personality and the effects of distress, depression, anger, entitlement, significant narcissistic traits, outrage, whilst displaying poor judgment and insight into her predicament, are all characteristics that feature in her offending.

28. To that end, comments in the Sentencing Assessment Report, dated 12 February 2020, that the appellant was minimising the severity of her actions by attributing her “frenzied activity, manic thoughts and unregulated moods” to an undiagnosed mental illness, at a time when the appellant had, by that stage, been in the care of a psychiatrist for the previous seven months was, in my view, inappropriate. The appellant’s statements were no more than an accurate statement of her situation, as had been established, without question, on the medical evidence. It is not challenged and I accept that the appellant’s major depressive disorder would have severely impaired her mental functioning, characterised by severe mood disturbance and irrational behaviour, both in respect of the allegations and her response to it, including, I interpolate, her instructions in the defence of the earlier proceedings.

29. Following discharge from hospital the appellant has undertaken regular treatment. She has responded well, increasing, over time, her insight into her offending and a sense of improved judgment, remorse and contrition in relation to her conduct. She has not offended since February 2017. She remains in long term and effective treatment in the community. The need for ongoing quality treatment is clear.

Extra-Curial Punishment by Media

30. Mr Boulten SC, who appeared with Mr Higgins for the appellant, relied also on the extra-curial punishment that had been meted out to the appellant in weighing up the balancing exercise that is required.

31. Almost every article in the media was attended with a photograph of the appellant, gave unnecessary detail about her life and painted, what I regard to be, a very unsympathetic picture of her. The reporting was widespread and included the following:

1. In March 2017, the appellant was described in the Daily Telegraph as, “a scorned lover” and “the girlfriend from Hell”. It was perhaps understandable, given the early days of the case and that it was a reflection of the allegations that were then made, but it is an expression that has reoccurred in later media articles and indeed, in his Honour’s reasons, long after it was an appropriate epithet.

2. On that same day, she was described by Elite Daily, at that time owned by the Daily Mail, as “crazy” and “going completely bonkers”. They are out-dated and ignorant statements that stigmatise mental illness in a way that was, and is, utterly unacceptable.

3. Some six months later, in August 2017, in the context of the appellant’s litigation in NCAT, the Daily Telegraph laid bare all of the appellant’s personal finances, providing not only the value of her assets, but the extent of her mortgage, with only marginal relevance to the matter at hand.

4. In March 2019, the Daily Mail described the appellant as, “a scorned psycho doctor”. The messages were unfairly described as “chilling”. The repetition of Mr Holberton’s unkind and offensive comments were a fine example of appalling and sensationalist journalism. The use of the word, “scorn”, was described by Mr Higgins in the Local Court, when he appeared for the appellant, as being “an unsophisticated characterisation”. That is an understatement. The Daily Mail showed no regard for the appellant’s clear mental health issues. The fact that his Honour continued to use the term is concerning.

5. The World News took up the mantle in repeating those comments and adding the epithet that the appellant was, “a creepy psycho” in yet another example of the banal, insensitive way in which the media approached the appellant’s significant mental health issues and with no regard for the outcome. The texts were set out in detail. It chose to publish only those texts that painted the appellant in the worst light and without the appropriate context. To describe that report as unfair, as Mr Higgins did to the magistrate, was also an understatement.

6. By October 2019, the New York Post had wind of the story. By then, the appellant had pleaded guilty to a much more confined set of facts and where the appellant’s mental health issues were well-known. She was misleadingly described as having sent 9,000 abusive and threatening messages.

7. On 30 October 2019, the Newcastle Herald also adopted the term “scorned”, to describe the appellant. The role of Mr Holberton, in at times communicating with the appellant, was not revealed.

8. News.com came very late to the story and ironically suggested its article was, in some way, some kind of revelation. The description of the appellant waging a “dangerously sophisticated hate campaign” was, in my view, an unfair one given what was known by then about the appellant’s mental health, and where the prosecution had conceded the genuine mental illness.

9. On 31 October 2019, the Daily Mail reported the recording of the magistrate’s findings that the appellant was “not a mentally ill person”. It was misleading and taken out of context. His Honour had no doubt that the appellant had real mental health issues.

10. In October 2019, the UK paper The Sun’s belittling use of the term “scorned bunny boiler”, in reference to the 1987 film Fatal Attraction, to describe the appellant, something that was taken up by the magistrate in his remarks. His Honour referred, on two occasions, to “one of the real ironies”, being that the appellant said to Mr Holberton that she was not a bunny boiler. Again, I regarded this as tone deaf on the magistrate’s part, given what his Honour then knew of the appellant’s significant mental health issues. The reason for the further derision by his Honour was not explained, and was in my view inappropriate and unnecessary.

11. Nine News described in detail, the sexual nature of the text exchanges, which laid bare two people in the throes of a relationship breakdown, albeit one that was short lived, including again, unnecessary references. Again, the text messages where characterised unfairly as “chilling”. One sensed the copy-and-paste-style of information sharing dressed up as journalism that so often takes place.

12. Such was the media fervour that the matter made its way into the New York Post. AAP disclosed the appellant’s personal details, including a photo of her home and overstated the number of messages and the nature of the relationship. Indeed, the finding by his Honour by this stage, was that there were indeed thousands of messages that were consensual communications between the appellant and Mr Holberton.

13. News Corp weighed in again, in a similar vein.

14. In November 2019, the New Zealand Herald chronicled the appellant’s significant school achievements, including the publishing of the appellant’s photograph as a child; only to then put her personality at school under the microscope by quotes from her less than charitable school peers and with no regard for her obvious mental health issues, describing them glibly as her “emotional immaturity”. It set out, for no apparent reason, her financial situation and it also again misrepresented the number of text messages.

15. Finally, in November 2019, News.com.au and Nine MSN, reported a very similar account, including two photos of the appellant as a child.

32. The Learned Magistrate characterised the media articles as, “interesting reading”, but found that it did not give undue attention to the case or that it was misguided or misleading. I have come to a very different view. I find them to be, at times, examples of the lowest form of so-called journalism. They are, overall, insensitive to the mental health of the appellant. They are, at times, inaccurate. They are invasive beyond that which is required to tell the story and they are often inflammatory and bigoted in their expression. I have little doubt this sells newspapers and provides the sought after click bait, but it has also imposed a further and unnecessary punishment upon the appellant, who was accepted, even by the prosecutor, to be a person deserving of the provisions of the mental health diversionary program that the law offers.

S 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW)

33. Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) relevantly provides that if, at any time during the course of a hearing, it appears to the magistrate that the defendant is or was at the time of the alleged commission of the offences to which the proceedings relate:

1. Suffering from a mental illness; or

2. Suffering from a mental condition for which treatment is available in a mental health facility; and

1. That it would be more appropriate to deal with the defendant in accordance with the provisions of that part, than otherwise in accordance with the law.

2. The magistrate may make an order dismissing the charge and discharging the defendant into the care of a responsible person, usually a psychiatric professional, unconditionally or subject to conditions, for assessment or treatment or both, of the defendant’s mental condition.

34. The state provision allows for a call up within six months of the order being made by the magistrate in the event of failure to comply with any conditions. 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.

S 20BQ of the Crimes Act 1914 (Cth)

35. Section 20BQ of the Crimes Act1914 (Cth) is in similar terms in respect of Commonwealth matters, with slightly different medical terms that are not relevant here. However, the length of the term can be up to three years.

Application of Relevant Law

36. Although the prosecutor in the Local Court conceded that a s 32 order was appropriate, before me the concession was limited only to the first limb; that the appellant was suffering from a relevant mental illness or condition, such that the statutes are engaged. The submission before me was, in short, that such was the seriousness of the offending, that it was appropriate to deal with the matter according to law.

37. The decision calls for an exercise of a value judgement about what is appropriate. This requires a balancing act between the condition of the appellant and the role of her mental condition in her offending, against the seriousness of the offences.

38. I have taken into account the following considerations in determining the appropriateness of diverting the appellant from criminal sentencing into treatment;

1. The public interest requires that those charged with a criminal offence face the full weight of the law.

2. Whilst the seriousness of the offences are a consideration and the likelihood of a custodial sentence if dealt with under the general law, it does not preclude the operation of the section, so long as diversion is the more appropriate option, both for the individual and for the community.

3. The circumstances in which the offending arose and in particular the link to the appellant’s mental condition.

4. The extent to which the decision will serve as a deterrence or otherwise to others. Although where the offending is so clearly linked and driven by the particular mental condition, it is not an appropriate vehicle for general deterrence and I so find in this case.

5. The public interest also requires that individuals who come in contact with the criminal justice system and who suffer from the relevant mental conditions, are treated and regulated for their own benefit, but also for the protection of the community. As to the latter, it is a question of what option will best deter the appellant from offending again.

6. Any unnecessary or unintended outcome that may result from being dealt with in according to law, particularly in respect of any custodial sentence.

7. Diversion does not mean that the appellant has not been exposed to a restriction on her liberty and thereby punishment.

8. So far as the Commonwealth charges are concerned, that the mental condition was also present at the time of the application, a matter that is not in issue.

39. Having been apprised of the matters at a very early stage of the proceedings and having read some but not all of the materials, his Honour remarked that he did not think that the offending crossed the s 5 threshold. By the time he came to sentence, he had clearly changed his mind. However, given the plea to the more limited case and the increased material as to the appellant’s mental condition, and the nature of the extra-curial punishment, both in regard to her professional standing and in the media, it is not clear to me why his Honour changed his mind. Having had regard to the nature of the offending and the motivation for it, I am of the view that the s 5 threshold has not necessarily been crossed, a matter that I have had regard to in the application.

40. Initially his Honour had;

No doubt that if psychiatrists read all the matter they would form very quickly, a psychiatric diagnosis as to the appellant’s position.

41. His Honour went on;

In my view these are serious matters and I have referred to the objective seriousness, the particular penalties and the like. In my view, the matter cries out for help and rehabilitation, more than anything.

42. In what is apparently his Honour’s particular style, having not read the materials and at the outset of the case, his Honour also remarked that, it appeared to his Honour, that;

The perpetrator of these offences required psychiatric help, rather than prison. 

43. His Honour, apparently moved by consideration that the application came not at the outset, but only after many days of legal argument and having been burdened with his Honour’s duty to read the relevant material prior to any plea being entered and the application being made, having made such unequivocal statements, changed his mind. His Honour appeared to have little regard for the impact of the mental condition on the appellant in conducting her defence and in the ongoing treatment that was occurring in the background, which had not started, until about mid-August 2019, although he did have the report of Dr O’Dea dated 7 October 2019.

44. Having now had regard to all of the materials, I can only agree with his Honour’s earlier characterisation of the offences and of the appellant.

45. I accept that the offences are serious and that they took place over a long period of time and with ongoing and fanatic planning; that they included the use of false email addresses; that the appellant was relentless, obnoxious and offensive in her actions towards, not only the subject of her rejection, but his new partner and her mother; and that her actions have been extremely damaging to them.

46. Those negative characterisations are almost entirely a result of the mental condition and the appellant’s distorted perception of what was occurring. She felt unreasonably victimised. I have no doubt that she was wrong in her perceptions, but I also have no doubt that this was a result of the serious mental health problems that she had at the time and during the Local Court hearing, and that without careful treatment and proper medication and ongoing support, they may return.

47. Given the time that has elapsed since October 2019 when his Honour found that the appellant was lacking in insight into her offending, the appellant has now been properly medicated for a period of time, has clear insight into the nature and extent of her conduct and is well engaged in her treatment to ensure that this does not re-occur.

48. Whilst mindful of the great harm she has done to her three victims and others, she too has suffered greatly. She has had her most vulnerable and personal experiences laid bare for the world to see. She has been unfairly vilified for her mental illness in both the media and by the magistrate. She has incurred enormous expense and disruption to her life in her distorted pursuit of litigation. She is an extremely diligent and intelligent professional who has lost her vocation, at least in the short term. I have no doubt, with proper treatment, that she will not re-offend.

Sentence

49. I make the following findings.

50. The appellant is eligible to be dealt with under s 32 of the Mental Health (Forensic Provisions) Act1990 (NSW) for sequence 3 and its equivalent Commonwealth provision, s 20BQ of the Crimes Act 1914 (Cth) for sequences 2, 4 and 5.

51. Having regard to the facts of the offending and the materials regarding the appellant, it would be more appropriate for the matter to be dealt with in accordance with the relevant mental health provisions than in accordance with the general law.

52. Accordingly, I allow the appeal. I dismiss the charges and discharge the appellant into the care of Dr O’Dea, with the following conditions:

1. The appellant is to remain in treatment in care of Dr O’Dea or any other qualified practitioner as she may be referred to from time to time; and

2. She is also to remain in the care of her current general practitioner or any other such general practitioner as she may be referred to from time to time.

53. So far as sequence 3 is concerned, it is to be a six month order. So far as sequences 2, 4 and 5 are concerned, it will be a three year order. All orders will commence from today. Any breach of those orders will result in a call up before me.

Additional Matter

54. There is just one additional matter, which I wish to remark upon. The inability of society in general and the legal system in particular, at times, to respond appropriately to people who are acutely mentally unwell and florid in their presentation, is a matter of considerable concern and regret.

55. This court is so often presented with complex and nuanced decisions, requiring sensitivity in respect of mentally ill offenders and victims. Indeed, the vast majority of them are either untreated or have received only minimal treatment. It does not serve the integrity of the justice system to deal with those people in a high handed and derisory fashion. It is demeaning to the people involved and has the potential to bring the system of justice into disrepute.

56. Given the level of power that they have to impact upon, in a material way, the lives of others, it is the responsibility of all of those who work in and around the criminal justice system and those who report on it, to deal with all people and particularly mentally unwell people with respect, despite their actions, criminal or otherwise. Something that, in my view, regrettably has not happened so far in this case.

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Amendments

18 December 2020 - Date of decision corrected to 23 October 2020

Decision last updated: 22 January 2021