Jeromie Walls v Kristy Louise McGuckin
[2017] ACTMC 10
•08 June 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jeromie Walls & Others v Kristy Louise McGuckin |
Citation: | [2017] ACTMC 10 |
Hearing Date(s): | 31 May 2017 |
DecisionDate: | 08 June 2017 |
Before: | Magistrate Theakston |
Decision: | 1. The following charges are dismissed pursuant to s 334 of the Crimes Act 1900 – CC16/12263, CC16/12264, CC16/13208 and CC16/13209. 2. The application in proceedings is otherwise dismissed. |
Category: | Interlocutory application |
Catchwords: | CRIMINAL LAW – Application to dismissal charges due to mental impairment |
Legislation Cited: | Crimes Act 1900 (ACT) Crimes Act 1914 (Cth) Criminal Code (Cth) Criminal Code 2002 (ACT) Mental Health Act 2015 (ACT) Road Transport (Driver Licensing) Act 1999 (ACT) Road Transport (Safety and Traffic Management) Act 1999 (ACT) Road Transport (Third-Party Insurance) Act 2008 (ACT) Road Transport (Vehicle Registration) Act 1999 (ACT) |
Cases Cited: | Nelson v Heil [2013] ACTSC 11 The Queen v Kristy Louise McGuckin [2014] ACTSC 242 R v Kristy Louise McGuckin (No 3) [2015] ACTSC 5 |
Parties: | Jeromie Walls, Verity Wolfenden, Jane Kenehan & Benjamin Stuart (Informants) Kristy Louise McGuckin (Defendant) |
Representation: | Counsel Ms S McMurray (Informants) Mr D Hoitink (Defendant) |
| Solicitors Director of Public Prosecutions (Informants) Legal Aid ACT (Defendant) | |
File Number(s): | CC 12262 of 2016 CC 12263 of 2016 CC 12264 of 2016 CC 12265 of 2016 CC 13206 of 2016 CC 13207 of 2016 CC 13208 of 2016 CC 13209 of 2016 CC 4288 of 2017 CC 1602 of 2017 CC 1603 of 2017 CC 1604 of 2017 CC 1605 of 2017 |
MAGISTRATE THEAKSTON
Situation
ACT Magistrate Court criminal proceedings ordinarily follow a predictable pathway. That pathway includes the conventional features of laying a charge, entering a plea, conducting a hearing, determining the issue of guilt and, if appropriate, determining sentence. However, in the case of mental impairment there is a diversionary alternative.
Where a defendant is found to be mentally impaired, s 334 of the Crimes Act 1900 (ACT) and s 20BQ of the Crimes Act 1914 (Cth), provides the court with a discretion to depart from the usual process and to dismiss the charge. The specific provision depends upon whether the offence is under ACT or Commonwealth law. The dismissal may be unconditional, or require the defendant to submit to the jurisdiction of the ACAT. This discretion is only available for charges being dealt with summarily and, for ACT indictable matters, the prosecutor’s consent is required.
As discussed in Nelson v Heil [2013] ACTSC 11, this discretion may be exercised at any stage of the summary process and, subject to establishing the defendant suffers from a mental impairment, involves a value judgment balancing the two public interests of:
· a defendant being prosecuted and facing the full weight of the law, and
· a mentally impaired defendant being treated and managed under the mental health system.
The discretion does not involve any choice between a public interest and the personal interests of the defendant.
Ms McGuckin has applied for a number of charges to be dismissed in accordance with the above arrangements. Most of the charges relate to summary territory offences, with one charge relating to a Commonwealth offence that may be dealt with summarily if both the defendant and prosecution consent to that course. No such consent has been provided to date and therefore, at least at this stage, I may not be able to exercise the discretion in relation to that charge. For completeness I have included that charge when undertaking the exercise of determining whether or not it may be appropriate to exercise the discretion.
The ACT provision lists a number of mandatory considerations for the purpose of determining whether or not it would be appropriate to exercise the discretion. The Commonwealth provision does not have a similar list. I have nevertheless turned my mind to those considerations for the purpose of the Commonwealth offence.
The prosecution did not concede that Ms McGuckin suffers from a mental impairment, or that it was appropriate to exercise the above discretion. Accordingly, they are the two issues for determination in relation to this application. However, before I address those issues, I will list the charges and briefly summarise key features of the alleged facts. There are four series of charges that are the subject of this application.
Charges and Facts
The first series of charges relate to 23 August 2016 and are as follows (with maximum penalties described):
· CC16/12262 – Drive unlicensed, repeat offender contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) – (50 penalty units, 6 months imprisonment or both, and 3 year automatic disqualification)
· CC16/12263 – Drive unregistered contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) – (20 penalty units)
· CC16/12264 – Drive uninsured contrary to s 17(1) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) – (50 penalty units)
· CC16/12265 – Fail to stop driving upon police direction contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) – (100 penalty units, 12 months imprisonment or both, and 3 month automatic disqualification)
The police allege they were called to a disturbance at a medical centre. A witness described Ms McGuckin creating a disturbance at the centre and destroying a garbage bin. Ms McGuckin was located outside the centre in the back seat of her car. She was highly agitated, aggressive and nursed a sore shoulder. Police attempted to negotiate with her. She did not exit the car. An ambulance was called, but delayed. Ms McGuckin’s behaviour escalated and ultimately she moved to the front seat of the car and drove away in an abrupt manner, notwithstanding repeated directions by police for her not to drive the vehicle. Police held fears about her capacity to adequately control the car.
10. The second series of charges relate to 21 December 2016 and are as follows (with maximum penalties described):
· CC16/13206 – Possess offensive weapon (steering wheel lock) contrary to s 380(1) of the Crimes Act 1900 (ACT) – ($1000 fine, 6 months imprisonment or both)
· CC16/13207 – Drive unlicensed, first offender contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) – (20 penalty units)
· CC16/13208 – Drive uninsured contrary to s 17(1) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) – (50 penalty units)
· CC16/13209 – Drive unregistered contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) – (20 penalty units)
11. The police allege Ms McGuckin stopped her car in the middle of the road. Another car, carrying a family with three children, stopped behind Ms McGuckin’s car and gave two short beeps of the horn. Ms McGuckin exited her car and approached the second car, brandishing what appeared to be a tyre iron. The second car drove around Ms McGuckin. Ms McGuckin followed the second car in her car, and stopped beside that second car at a set of traffic lights. There she swung at the second car with a blue steering lock while saying the words ‘I’m going to kill you. Watch your backs, I know everybody.”
12. The second car drove off with Ms McGuckin following in her car. Ms McGuckin lost control of her car at a corner and spun around facing the wrong direction. She drove off. The second car followed her at some distance. Police were notified. Police arrested Ms McGuckin at a nearby shopping centre. She was aggressive towards police.
13. The third series involves a single Commonwealth charge which relates to 17 January 2017 and is as follows (with the maximum penalty described):
· CC17/4288 – Use carriage service to harass contrary to s 474.17(1) of the Criminal Code (Cth) – (3 years imprisonment)
14. Police allege Ms McGuckin telephoned the National Security Hotline on six occasions and stated in a highly agitated voice:
I’m looking for answers and will hurt someone soon if I don’t get them. I’ll put a knife to someone’s throat if I don’t get them.
I want the answers and I want them now.
I will take the money next time, I will light the fires and I will blow it up.
15. The fourth series of charges relate to 29 January 2017 and are as follows (with maximum penalties described):
· CC17/1602 – Common assault contrary to s 26 of the Criminal Code 2002 (ACT) – (2 years imprisonment)
· CC17/1603 – Common assault contrary to s 26 of the Criminal Code 2002 (ACT) – (2 years imprisonment)
· CC17/1604 – Common assault contrary to s 26 of the Criminal Code 2002 (ACT) – (2 years imprisonment)
· CC16/1605 – Obstructing a territory public official contrary to s 361(1) of the Criminal Code 2002 (ACT) – (200 penalty units, 2 years imprisonment or both)
16. Police allege Ms McGuckin aggressively approached a car outside a police station. There was a driver in the car. She stared at the driver in an aggressive way and punched the car’s side mirror. Police approached Ms McGuckin. She placed her belongings on the ground, removed her jumper, clenched her fists and positioned her body in a manner as if she wanted to fight police. She aggressively swore at police and motioned to punch police, coming within half a metre of a police officer. She then rushed towards police who took her to the ground. She bit a police officer’s forearm. Police handcuffed her and raised her to her feet. She attempted to kick a police officer. She then headbutted a police officer. She was placed inside a police caged vehicle.
Does Ms McGuckin suffer from a mental impairment?
17. There were a number of documents in evidence with varying opinions about Ms McGuckin’s state of mental impairment. Also in evidence were clinical notes from ACT Mental Health and the Alexander Maconochie Centre.
18. Additionally, I was provided with ACT Supreme Court decisions of Refshauge J, relating to a 2014 judge alone trial, where Ms McGuckin was found not guilty of a number of serious offences by reason of mental impairment and a number of other matters were referred to the ACAT for recommendation: The Queen v Kristy Louise McGuckin [2014] ACTSC 242 and R v Kristy Louise McGuckin (No 3) [2015] ACTSC 5.
19. It was submitted on Ms McGuckin’s behalf that I should accept Dr Allnutt’s assessment that Ms McGuckin ‘likely has a paranoid schizophrenic condition, aggravated by the use of substances and complicated by an underlying borderline personality disorder’ and therefore find that she suffers from a mental impairment.
20. The prosecution submitted that I should prefer the assessment by Dr Kasinathan that rather than suffering from schizophrenia, Ms McGuckin has a ‘personality disorder with antisocial and borderline traits, amphetamine and cannabis use disorder and recent amphetamine-induced psychotic disorder’ and therefore does not suffer from a mental impairment.
21. For relevant purposes ‘mental impairment’ is defined as including mental illness and severe personality disorder. ‘Mental illness’ is in turn defined as ‘an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a "reactive condition") resulting from the reaction of a healthy mind to extraordinary external stimuli’: s 27 Criminal Code 2002 (ACT).
22. The evidence uncontroversially establishes that Ms McGuckin has suffered, from time to time, periods of psychosis and delusional thinking. She has been medicated, and her condition has improved. There is a history of drug use that may have aggravated her condition. Dr Allnutt explained the reasoning of his option and how he distinguished his diagnosis from the competing diagnosis of substance induced psychosis. He noted the long psychiatric history with associated periods of psychosis; the family history of schizophrenia and the possible genetic predisposition to the illness; examples of psychosis when medicated; the correlation between deterioration in mental health and reduction in medication; and an example of Ms McGuckin’s mental health deteriorating at one point when in custody.
23. Dr Kasinathan does not categorically assess Ms McGuckin as not suffering from a mental illness, but rather assesses it is not a ‘severe’ mental illness. That appears to be based principally on the absence of a range of symptoms during a clinical assessment on 3 September 2015. Dr Kasinathan declines to diagnose schizophrenia due to there being ‘insufficient breadth of symptoms for an insufficient period of time’, in particular no genuine hallucinations, negative symptoms or bizarre (psychotic) behaviour. However, the basis of that assessment is not consistent with the history described within Dr Allnutt’s report. It is also not consistent with the history reported in the clinical notes created since Dr Kasinathan’s report and included within the evidence.
24. I therefore accept Dr Allnutt’s assessment, and prefer it to that of Dr Kasinathan’s.
25. Additionally I am satisfied that, even if Ms McGuckin does not suffer from schizophrenia, her maladaptive behaviour and genetic loading along, with her borderline personality disorder and occasional episodes of psychosis, which may be drug induced, would satisfy the definition of sever personality disorder and or mental illness and, therefore, the definition of mental impairment.
26. The only evidence about Ms McGuckin’s current mental health state was contained in two letters from treating clinicians of 14 April and 1 May 2017. The former was prepared in anticipation of Ms McGuckin being released on bail and reported that her psychotic symptoms had mostly resolved and the therapeutic relationship was much improved. On 18 April 2017, Ms McGuckin was released on bail. The latter letter reported that at a review on 21 April 2017 there was no evidence of deterioration in mental state and Ms McGuckin continued to be agreeable to ongoing follow up. Ms McGuckin failed to appear at the hearing of this application. Ultimately I note that, on any assessment, Ms McGuckin’s condition is clearly chronic in nature and therefore little turns on her precise symptoms at the time of the application.
27. I accordingly find that Ms McGuckin suffers from a mental impairment, namely a paranoid schizophrenic condition, aggravated by the use of illicit substances and complicated by an underlying borderline personality disorder.
Is it appropriate to exercise the discretion?
28. This discretion may only be exercised if I make a positive finding that it is appropriate to do so. Mandatory considerations inform that exercise.
29. The nature and seriousness of the mental impairment is described above. It involves features of delusions, paranoia and psychosis. It appears to respond, at times to medication, and is adversely affected by Ms McGuckin’s use of illicit substances.
30. The totality of the evidence supports the finding that Ms McGuckin’s mental impairment is chronic in nature, with guarded prognosis. It is likely to continue indefinitely and she will need to be treated in the long term. Reduction in treatment over recent years has coincided with deterioration in her condition.
31. Dr Allnutt’s email of 19 April 2016 opines that ‘there is a risk in the absence of ongoing treatment and engagement [Ms McGuckin], or others, might come to harm.’ I note that the charges before this court involve violence, including the use of a weapon, and the erratic use of a car. The 2014 trial involved aggravated robbery in a supermarket with a pair of scissors and a number of assaults occasioning actual bodily harm. I am satisfied that there is a real risk that Ms McGuckin may do harm to others, and or herself, and that harm may be serious.
32. The evidence before the court suggests that, when Ms McGuckin is unwell, she lacks insight into her illness and would not be able to consent to her treatment. Accordingly, the ACAT could at such times, make a treatment order under the Mental Health Act 2015. However, the most recent reports suggest that Ms McGuckin is receptive and compliant with treatment and, in those circumstances, the ACAT may not be able to make such an order.
33. A number of the offences involve aggression and hostility. These include the assault and resist public official matters, as well as the driving unlicensed and use a carriage service to harass. Their individual maximum penalties are described above. While those maximums are towards the lower end of what is provided by the legislator for criminal offences, they nevertheless involve periods of imprisonment. (The exception is CC16/13207, which is drive unlicensed, first offender. This charge appears to be particularised as first offender because it is said to have occurred just days over five years after the earlier conviction for driving unlicensed and therefore falls outside of the definition of repeat offender.) Critically, they each involve actual violence, the threat of violence or significant risk to self and others. In contrast there are also a number of charges that are only of a regulatory nature, namely those relating to the offences of driving unregistered and uninsured motor vehicles, and do not involve risk to others.
34. The criminal history contained within the evidence is replete with references to offences of violence. I note that the entries since 2012 have either been dismissed pursuant to a similar discretion or found not guilty by reason of mental impairment. The former category, of course, does not involve any finding of wrongdoing.
35. Consistent with the chronic nature of Ms McGuckin’s condition and how her mental health is dependant upon ongoing treatment, the numerous orders previously made pursuant to s 334 have only been temporarily effective. The pattern appears to be that following offending Ms McGuckin is compelled or persuaded to undergo treatment. Her condition improves and the matters are finalised. In the absence of any ongoing psychiatric treatment order, her compliance with treatment wanes and her condition eventually deteriorates.
36. Finally, I give consideration to the possible proceedings under the ordinary criminal justice system. Possible outcomes from such proceedings include a range of coercive consequences that would go some way to holding Ms McGuckin accountable for her actions, provide specific deterrence and reduce the risk to the community.
Decision
37. When I consider the above issues and recall the purposes of the criminal justice system, including imperatives such as holding offenders to account and the protection of the community, and noting the chronic nature of Ms McGuckin’s condition, her alleged offending and applications of this type, and the real risk she periodically poses to the community; I am not persuaded that it would be appropriate to divert offences involving violence, threats of violence or risks to the community from the criminal justice process. For those charges I simply cannot find, to the requisite standard, that it would be appropriate to exercise the discretion.
38. Conversely, in relation to the offences regulatory in nature, I am persuaded that it would be appropriate and expeditious to divert associated charges towards mental health treatment and management. In such circumstances the public interest of such diversions clearly outweighs the public interest in pursuing those prosecutions.
39. I turn finally to the question of dismissing the relevant charges absolutely or requiring Ms McGuckin to submit to the jurisdiction of the ACAT. I note Ms McGuckin’s most recent treatment was received voluntarily. The last reports describe her as remaining receptive to treatment. In those circumstances there appears to be little utility in requesting the ACAT to consider making a mental health order at this point in time.
40. Accordingly, I make the following orders:
The following charges are dismissed pursuant to s 334 of the Crimes Act 1900 – CC16/12263, CC16/12264, CC16/13208 and CC16/13209.
The application in proceedings is otherwise dismissed.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Theakston. Associate: Taden Kelliher Date: 08 June 2017 |
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