Heyne v Gray
[2018] ACTMC 6
•8 May 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Heyne v Gray |
Citation: | [2018] ACTMC 6 |
Hearing Dates: | 27 April 2018 |
DecisionDate: | 8 May 2018 |
Before: | Magistrate Hunter OAM |
Decision: | See [24] – [36] |
Catchwords: | CRIMINAL LAW – Assault occasioning actual bodily harm – offences against the person – disposition of criminal charges under Crimes Act 1900 (ACT) s 334 – diversion to mental health tribunal – relevant factors to determine appropriateness – test of balancing interests |
Legislation Cited: | Crimes Act 1900 (ACT) s 334 |
Cases Cited: | Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93 Markarian v The Queen (2005) 228 CLR 357 Nelson v Heil [2013] ACTSC 11 (25 January 2013) Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993) |
Parties: | Constable Scott Heyne (Informant) Corey Gray (Defendant) |
Representation: | Mr P Dixon (Informant) Mr A McKenna (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Aulich (Defendant) | |
File Numbers: | CC 12788 of 2017 |
SPECIAL MAGISTRATE HUNTER
Mr Gray comes before me charged with one count of committing assault occasioning actual bodily harm on the 1 September 2017, pursuant to s 24 of the Crimes Act 1900 (ACT) (‘ACT Crimes Act’). The facts are not in dispute and there is CCTV footage depicting what happened. I have seen that footage played in Court before me on 27 April 2018.
Essentially it depicts the defendant speaking with Chaydin Reid, a friend, when he suddenly punches Mr Reid knocking him off his chair. The defendant then goes over to Mr Reid when he is on the floor and delivers more punches. Another patron of the establishment where it occurred comes between the two parties. The defendant then takes an air swing at Mr Reid. The incident is over in a matter of seconds.
Counsel for the defendant has made an application under s 334 of the ACT Crimes Act for this matter to be dealt with under that provision.
I have had the benefit of a comprehensive forensic mental health assessment report before me under the hand of Dr Daniella Clout dated 2 March 2018, exhibited before me as Exhibit D1. I have also read a treatment report by treating Psychologist Susan Pelengaris, and several character references which all speak highly of the defendant and which assert that this behaviour is totally out of character.
I also have a discharge summary of the injuries sustained by Mr Reid, together with photographs exhibited as Exhibits P4 and P5.
The defendant does not have any criminal antecedents for violent behaviour. It would appear from the evidence before me that this behaviour came ‘out of the blue’.
I note from the Forensic Report and the Psychologist Report that the defendant had been suffering with a mental illness at the time of the offence. I note he had received some treatment from Ms Pelengaris just prior to the incident. Ms Pelengaris outlined her findings at that time as severe depression, extremely severe anxiety and stress, as well as untreated PTSD.
Those findings were confirmed by Dr Clout in her report at the Executive Summary.
I am satisfied that the defendant was suffering from a mental illness at the time of the offending behaviour and still suffers from that condition.
10.I was referred to the decision of Nelson v Heil [2013] ACTSC 11 (25 January 2013) (‘Nelson v Heil’), parts of which I have extracted below, where Refshauge ACJ sets out some history of the provision as well as the current provisions:
[1]In 1994, the ACT Government substantially revised the system of mental health regulation in the ACT following a wide-ranging review by the ACT Mental Health Review Committee.
[2]In their Report to the Legislative Assembly of the Australian Capital Territory, Balancing Rights (1990), the Review Committee recommended (at 10):
Recommendation 42
In the case of offenders who are mentally dysfunctional and who have been found fit to plead or whose mental illness or condition has not been found relevant to the offence, the Court be empowered to discharge the person or refer the person into the mental health system for care, treatment and protection. Consequently, legislation similar to S32/S33(1) of the NSW Mental Health (Criminal Procedure) 1990 Act [sic] be adopted in the ACT.
[3]That recommendation apparently was accepted, for a provision — s 428W — was inserted in the Crimes Act 1900 (ACT) (ACT Crimes Act) by the Crimes (Amendment) Act 1994 (ACT), that provision being similar to s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) (which was, in 2008, renamed the Mental Health (Forensic Provisions) Act 1990 (NSW)). In an interesting irony, the New South Wales provision had originally appeared also as s 428W of the Crimes Act 1900 (NSW) (NSW Crimes Act) before being relocated.
[4]The Explanatory Statement to the Bill that became the Crimes (Amendment) Act gave no particular explanation of the new ACT section but merely gave a précis of it. The Presentation Speech made some reference to the provision as follows (Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 June 1994, 2026, 2257-8 (Terry Connolly, Attorney-General)):
At present if a mentally dysfunctional person comes into contact with the courts it will usually be the Magistrates Court in relation to a summary offence. A Magistrate may conclude that, having regard to the person’s mental dysfunction and the minor nature of the alleged offence, it is appropriate that the charge be dismissed and the person be referred to the mental health authorities.
The Bill confers the power to make such orders on Magistrates and ensures they retain the flexibility to make other appropriate orders in these cases. Magistrates will be able to seek advice from the Tribunal as to whether a person is mentally dysfunctional and recommendations as to how the person should be dealt with. The Magistrates Court will be able to refer mentally dysfunctional persons who have been convicted of a summary offence to the Tribunal for the making of a mental health order.
[5]The provision was subsequently amended to expand its provisions somewhat and, in 2002, renumbered on republication as s 334. It is now in the following terms:
334 Powers of Magistrates Court
(1)This section applies where, in proceedings to which this division applies before the Magistrates Court, that court is satisfied that—
(a) the accused is mentally impaired; and
(b) on an outline of the facts to be alleged in the proceedings, or any other evidence the Magistrates Court considers relevant, it would be appropriate to deal with the person under this division.
(2) If this section applies, the Magistrates Court may by order—
(a) dismiss the charge and require the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order; or
(b) dismiss the charge unconditionally.
(3) In determining whether to make an order under subsection (2) (a) or (b), the Magistrates Court shall have regard to—
(a) the nature and seriousness of the mental impairment; and
(b)the period for which the mental impairment is likely to continue; and
(c) the extent to which by reason of the accused’s mental impairment the accused is likely to do serious harm to himself or herself or others; and
(d) whether the ACAT could make an order under the Mental Health (Treatment and Care) Act 1994, section 26 (What ACAT must take into account) or section 27 (ACAT may not order particular drugs etc); and
(e) the seriousness of the alleged offence; and
(f) the antecedents of the accused; and
(g) the effectiveness of any order previously made under subsection (2) (a) or (b), including to the extent to which—
(i) the order assisted the accused to obtain appropriate treatment and care for his or her mental impairment; and
(ii) access to that treatment and care has enabled the accused to modify his or her behaviour, being behaviour of a kind that has previously resulted in the accused having been charged with an offence.
(4)Despite subsection (2), the Magistrates Court may only make an order under that subsection in relation to proceedings with respect to an indictable offence that may be heard and determined summarily with the consent of the director of public prosecutions.
(5) If the Magistrates Court makes an order under subsection
(2) (a), the order operates as a stay of proceedings, or of further proceedings, against the accused in relation to the offence.(6) If the Magistrates Court makes an order under subsection (2), it must not make an order under any of the following provisions of the Crimes (Sentencing) Act 2005 for the offence:
(a) section 13 (Good behaviour orders);
(b) section 17 (Non-conviction orders—general);
(c) section 19 (Reparation orders—losses and expenses generally);
(d) section 20 (Reparation orders—stolen property).
(7)An order under subsection (2) does not constitute a finding that an offence has or has not been committed.
(8) In proceedings to which this section applies, to determine whether an accused has a mental impairment, the Magistrates Court may make any orders it considers appropriate, including the following:
(a) that the accused submit to the jurisdiction of the ACAT;
(b) that the proceedings be adjourned ...
11.His Honour then went on to discuss what considerations a magistrate must make in order to arrive at a decision as to whether to invoke the provision or not. His Honour said, at [6], referring to McColl JA in Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93 (‘El Mawas’): “Under s 336 of the ACT Crimes Act, the Magistrates Court, in conducting an inquiry for the purposes of s 334, may inform itself as it considers appropriate.”
12.McColl JA in El Mawas considered in detail the nature of the exercise that a magistrate was required to undertake in that case. It is similar under s 334 of the ACT Crimes Act. In particular, Her Honour said, at 108; [71], that the section:
…requires a magistrate to balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to ...
13. This is, Her Honour found, after a careful review of the authorities, a discretionary decision, though involved in making a value judgment. It is not necessary to repeat what Her Honour there said, but I respectfully adopt it. Her Honour, at 109; [76]–[78], approved the description of the task by Howie J in Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 at [16]–[18] as follows:
[16] It is clear that s 32 requires the magistrate to make a discretionary judgment as to the appropriateness of proceedings under the section rather than under the general criminal law. But the section requires a magistrate to arrive at a positive finding of fact before proceeding to deal with the defendant under the provisions of Part 3 of the Act. The magistrate can only proceed under s 32(3) to dismiss the charge or discharge the defendant where, in accordance with s 32(1) (b), the magistrate has determined that;
... it would be more appropriate to deal with the defendant in accordance with the Provisions of this Part than otherwise in accordance with law.
[17] In order to determine whether it is more appropriate to deal with the applicant under Part 3 the magistrate has to perform a balancing exercise; weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system. It is a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case. But it is one that cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act. It should be emphasised that what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation.
[18] Because the magistrate’s jurisdiction under the Act involves a discretionary judgment, what weight is to be given to the various factors that touch upon that judgment will be very much a matter for the particular magistrate. It would be very difficult, if not impossible, for a defendant to convince this Court to intervene in the exercise of that discretion simply on the basis that the magistrate appeared to give more weight to one factor than another. As with any appeal against a discretionary judgment, the basis upon which this Court can intervene in the exercise of the power under s 32 is very limited.
14. While the option afforded by the section is a diversion which is, as I have found, able to be afforded a defendant without a plea being entered, part of the balancing exercise must be to weigh up the possible (or even likely) outcome were the defendant dealt with in accordance with the ordinary criminal justice system.
15. While, unlike s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) which uses the words “more appropriate” as the test, s 334 does not use the word “more” but only “appropriate”, it seems to me that the effect is similar, though it may not be exactly the same. Thus, if it is “appropriate” (a discretionary finding: El Mawas) to deal with a defendant under s 334, then it may not matter much whether it is appropriate or even more appropriate that he or she be dealt with under the ordinary criminal justice system. To determine whether it is appropriate, however, the Court must give some consideration to the possible proceedings under the ordinary criminal justice system.
16. In that context, it seems to me that accountability may very well be a pertinent issue in deciding whether it is appropriate that the defendant be diverted at this early stage. That is particularly so when s 331 of the ACT Crimes Act permits diversion after conviction, where issues of accountability and criminal record can be met without preventing proper reference to the criminal justice system.
17. Thus, it may be highly relevant as to whether the defendant’s mental impairment was treatable or otherwise amenable to management within the mental health system; if it were not, diversion to the ACAT may be pointless. It would also be relevant as to whether the defendant’s mental impairment contributed to the commission of the offence, even if not to the degree to permit an acquittal on the grounds of mental impairment, for treatment may protect the community from further offending. It would also be relevant as to whether the defendant was floridly ill, though not unfit to plead, so that for an offence that was not sufficiently serious the process of the ordinary criminal justice system can, in the exercise of some common humanity, be circumvented.
Seriousness of the offence
18. The High Court in Markarian v The Queen (2005) 228 CLR 357 at 372; [30]–[31] referred to the seriousness of an offence being measured from the maximum penalties, but that is not a static assessment. As was there said, the maximum penalties “invite comparison between the worst possible case and the case before the court”. It is clear that while the penalties set by the legislature do mark out seriousness, the actual seriousness of the offence in a meaningful sense can only be measured by the actual behavior.
19. Those are the consideration I must make in deciding this matter. The legislation sets out the required considerations. As cited above they can be summarised as follows:
(a) I must find the defendant has a mental illness;
(b) After considering relevant considerations (as set out in the provision) whether it is appropriate to deal with the matter under s 334;
(c) Once the consideration of the appropriateness is made then the other sections of the provision may apply;
(d) In making that determination of appropriateness in this case the factors that I must consider are:
(i) The nature and seriousness of the mental impairment;
(ii) The period the mental impairment is likely to continue;
(iii) Whether the ACAT can make an order;
(iv) The seriousness of the offence;
(v) Antecedents.
20. As I understand it, Counsel for the defendant submitted that the incident occurred in a setting of mental illness, stress and anxiety, with Mr Reid making derogatory remarks about Mr Gray’s mental health issues twice that night. The thrust of the submission was that those remarks, in a setting where the defendant was suffering severe symptoms of stress, anxiety and depression in a setting of PTSD, acted as an ignition point to the behaviour.
21. The defendant is horrified and shocked that he acted in the way described. The defendant has sought, and continues with, treatment of his condition. It is unknown just how long he will require treatment.
22. Dr Clout opines that the defendant has a mental illness: “the mental illness played a significant role in his offending behaviour, particularly his ability to control his impulses and to judge the consequences of his actions in the situation”.[1]
[1] Dr Clout’s Report p 2 para 3.
23. This illness is clearly ongoing and requires specialist treatment.
Decision
24. I am satisfied that Mr Gray is suffering from a mental impairment. I am also satisfied that it is a serious mental Impairment which will require ongoing specialist treatment.
25. It is difficult to say how long this impairment will last and I have no direct evidence to suggest it is short or long term other than the comment by Dr Clout at paragraph 6. However given that he has suffered from this impairment for a considerable time it is likely to be long term in my view.
26. I am satisfied that the ACAT could make an order in relation to the defendant, despite the opinion of Dr Clout that it may not be necessary given his willingness to seek and accept treatment.
27. In relation to the seriousness of the offence, I note that there has been an election filed for the matter to be dealt with summarily. Therefore this Court must deal with the matter. Having said that, the seriousness of the offence can be decided by the factual circumstances and consequences of the offending behaviour.
28. In my view all offences of violence are serious. It really becomes a question of degree. For an assault occasioning actual bodily harm there must be an unlawful application of force In this case: punches. There must be injury. In this case: the Discharge Summary which is exhibited at P4 gives a discharge diagnosis of “assault, superficial abrasions/contusions (multiple)”. I am also aware from the photographs that Mr Reid had a chipped front incisor.
29. Having considered the facts and CCTV footage in evidence before me, objectively this is not the most serious assault occasioning actual bodily harm. In my view it is between a low to moderate level of objective seriousness.
30. I have taken into account the moral culpability of the defendant after considering his mental impairment at the time and now. In my view it is low.
31. I note that the defendant has no criminal history involving violence and has one antecedent: a drug driving charge from NSW in 2008.
32. The Prosecutor submitted that this matter should be dealt with in the usual way because of the seriousness of the offending behaviour, and that it was not appropriate to deal with the matter under the provision of s 334 because it was not minor in nature, referring to the photograph.
33. The Prosecutor submitted that I must undertake a balancing act: on the one hand the public’s interest in seeing criminals punished for their behaviours and on the other hand the public interest in rehabilitation of perpetrators.
34. The balancing act is a competing of both interests, one tugging against the other. I agree with both submissions and I reflect what Refshauge ACJ said in Nelson v Heil at [37], referring to Smart J in Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993), and specifically at [43], citing McColl AJ’s description of the balancing interests in El Mawas.
35. It is a value judgement, and having considered all of the matters I have referred to in my view, the balancing scales are tipped toward a therapeutic outcome in my view.
36. In all the circumstances I am satisfied that it is appropriate to deal with this matter pursuant to s 334 of the ACT Crimes Act and I do so.
Order
37. I make an order pursuant to s 334(2)(a) of the ACT Crimes Act. I dismiss the charge and I order that the defendant Corey Gray submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.
| I certify that the preceding thirty seven [37] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter Associate: Cecilia Pascoe Date: 9 May 2018 |
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