Matthew Edwards v Rebecca Craggs
[2020] ACTMC 22
•21 September 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Matthew Edwards v Rebecca Craggs |
Citation: | [2020] ACTMC 22 |
Hearing Date(s): | 14 September 2020 |
DecisionDate: | 21 September 2020 |
Before: | Chief Magistrate Walker |
Decision: | See [1] - [41] |
Catchwords: | CRIMINAL LAW – SENTENCE mental impairment, prosecution election, s334 Crimes Act1900 (ACT), prosecutor’s consent to dismissal |
Legislation Cited: Cases Cited: | Bail Act 1992 (ACT) Grajewski v DPP New South Wales [2017] NSWCCA 251 |
| Parties:
| Matthew Edwards (Informant) Rebecca Craggs (Defendant)
G Meikle (Defendant) ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Defendant) |
File Number(s): | Charges 6206, 6207 and 10677 of 2019; 3039, 3040, 3041, 3042, 5474 and 8818 of 2020. |
CHIEF MAGISTRATE WALKER:
The defendant is charged as follows:
a. 31 May 2019, assault occasioning actual bodily harm contrary to s24 Crimes Act 1900 (ACT) (“Crimes Act”) and damage property contrary to s116(3)(i) Crimes Act;
b. 6 March 2020, two counts of common assault contrary to s26 of the Crimes Act, minor theft contrary to s321 Criminal Code 2002 (ACT) (“Criminal Code”) and indecent exposure contrary to s393 Crimes Act;
c. 30 September 2019, 7 May 2020 and 24 July 2020 failing to appear contrary to s49 Bail Act 1992 (ACT) (“Bail Act”).
The assault occasioning actual bodily harm offence carries a maximum penalty of 5 years imprisonment. Each of the remaining offences are summary and carry imprisonment of two years or less as a maximum penalty.
Two matters fall to be decided:
a. when the prosecution elects to have an indictable matter, which may be dealt with summarily, dealt with summarily pursuant to section 374(2) of the Crimes Act 1900, is the consent of the prosecutor still required before the court can dismiss the charge pursuant to section 334(2) of the Crimes Act?
b. should the court exercise its power to dismiss some or all of the charges before the court pursuant to section 334(2) of the Crimes Act?
The Crimes Act Part 13 provides a diversionary scheme for people charged with a criminal offence who also suffer some form of mental impairment. Section 334(2) allows a magistrate to dismiss a charge or charges against the person. That dismissal may be either unconditional or on condition that the person submits to the jurisdiction of the ACT Civil and Administrative Tribunal (ACAT) for determination as to whether a mental health order should be made in respect to the person. Where the offence is a summary offence the dismissal is exclusively at the discretion of the Court.
However, s334(4) provides: “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.”
In this case the defendant is charged with an assault occasioning actual bodily harm contrary to s24 Crimes Act, an offence for which the maximum penalty is up to five years imprisonment. The offence is indictable. However, the prosecution has exercised its discretion to elect for summary disposal pursuant to s374 Crimes Act. The prosecution submit that its consent is nonetheless required for a dismissal. The defence submit that the offence is to be dealt with as a summary offence and may be dismissed by the court without prosecution consent. This is the preliminary issue to be determined.
The defendant is also charged with a number of summary only offences. She applies to have all charges dismissed pursuant to s334. That is the substantive issue.
The preliminary issue
There are three categories of criminal offence which come before the Magistrates Court: those that are indictable only which, although commenced in the Magistrates Court, must if they meet the legal standard for committal to the Supreme Court, be heard and finalised in the Supreme Court; summary offences which begin and must be finalised in the Magistrates Court, and hybrid offences which are indictable but may be heard, with consent of one or both of the parties as legislatively authorised, in the Magistrates Court
Summary offence is defined in s190 Legislation Act 2001 (ACT) (“Legislation Act”) as an offence other than an indictable offence. An indictable offence is one which is either punishable by imprisonment for longer than 2 years, is declared by an ACT law to be an indictable offence or is an indictable offence that is or may be dealt with summarily.
10. Purely summary offences clearly fall within the magistrate’s discretion under s334(2) to dismiss, unfettered by the views of the prosecutor. The issue does not arise in respect to purely indictable offences. It is the hybrid offence which creates a degree of complexity.
11. The Courts Legislation Amendment Act 2011 (ACT) introduced s374 of the Crimes Act which created a prosecution power to elect to have charges punishable by imprisonment for longer than 2 years but not longer than 5 years disposed of summarily.
12. Section 375 Crimes Act allows a defendant to consent for summary disposal of a range of offences carrying a maximum penalty of more than 2 years imprisonment.
13. Here the prosecution exercised its election pursuant to s374 Crimes Act which relevantly provides: (1) This section applies if a person (the defendant) is before the Magistrates Court charged with—
(a) an offence punishable by imprisonment for longer than 2 years but not longer than 5 years; …
(2) The prosecutor must elect whether to have the case disposed of summarily…
(6) If the prosecutor elects to have the case disposed of summarily, the court must hear and determine the charge summarily and sentence or otherwise deal with the defendant according to law.
14. The prosecution submits that the language of the statute is clear. Despite having exercised its discretion to have the assault occasioning actual bodily harm dealt with summarily, the charge nonetheless falls within the category of charges contemplated at s334(4). The court cannot dismiss the charge without the prosecutor’s consent. That consent is not given.
15. The prosecution election cannot be taken to infer that the matter is not a serious one but may reflect a variety of other circumstances which may warrant a penalty less than 2 years imprisonment, such as the person’s criminal history or lack thereof and the cost or convenience of having the charge dealt with summarily. The election does not alter the maximum penalty but merely sets a jurisdictional limit; therefore the nature of the offence as an indictable offence is also not altered.
16. By way of comparison, s9D of the Bail Act specifically addresses the situation where a prosecution election has been made, taking it outside of the category of serious offence therein defined, from which the inference can be drawn that the legislature did not intend that the making of an election by the prosecution would take indictable charges which may be dealt which summarily outside the remit of s334(4). Had it so intended, that intent would have been express.
17. The defendant submits that where the prosecution has made an election in respect to a charge, s334(4) becomes redundant as the effect of the election is that the charge is to be dealt with as though it were summary. To the extent that this is not a clear reading of the section, an ambiguity arises in the interpretation of s334(4). That ambiguity having arisen, it is to be resolved by reference to principles of interpretation summarised as follows:
a. the interpretation should be that which is most beneficial to the defendant having regard to the words of the legislation and the scheme of the Act;
b. that significance should be attached to the difference in the description of offences for which consent is required under s334(4), that is “indictable offences that may be heard and determined summarily” and indictable offences as defined in s190(2) Legislation Act, that is “an indictable offence that is or may be heard and determined summarily”;
c. It is clear from s374 that the prosecution election does more than limit the court’s sentencing powers; rather it mandates in s374(6) that the charge be dealt with summarily “in a holistic sense”;
d. A contextual and purposive reading of the Crimes Act as a whole favours the defence position; the prosecution right to elect was created in the context of an increase of the Magistrates Court summary jurisdiction to up to 5 years imprisonment but in the situation where it was the prosecution which removed the defendant’s right of election, the defendant is entitled to have the matter otherwise dealt with as if it were a summary offence; and
e. It is incongruous for the DPP to determine by its election that a matter should not result in a sentence in excess of 2 years and yet it should not be open for the court to exercise its discretion in respect to an offence so characterised in the same way as for offences which by their own terms carry a penalty of less than 2 years imprisonment.
Consideration
18. I apply the guidance of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute. Whilst at the same time regard is to be had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense”.
19. There is no ambiguity to be determined. Having regard to s374(6):
If the prosecutor elects to have the case disposed of summarily, the court must hear and determine the charge summarily and sentence or otherwise deal with the defendant according to law.
20. The words “or otherwise deal with the defendant according to law” are subject to the caveat that the ‘dealing with’ is to be summary without further caveat. That would take offences in which the prosecution has exercised its election outside the operation of s334(4).
21. This approach is strengthened on close analysis of the words used in s334(4) which on their plain reading no longer apply to the charge in which the election has been made – it is no longer an indictable offence which may be heard and determined summarily – the election having been made, the court must hear and determine it summarily s374(6).
22. In this regard the distinction between the definition of an indictable offence in s190 Legislation Act and the words used in s334(4) is significant. That section provides, relevantly: (2) An " indictable offence" includes an indictable offence that is or may be dealt with summarily. The words “is or..” do not appear in s334(4); it deals with an offence which is an indictable offence which “may” be dealt with summarily. An offence for which the prosecution have elected summary disposal must be dealt with summarily; it thus falls outside the ambit of s334(4). This cannot be presumed to be an accidental omission.
23. The modified reference to an indictable offence in s334(4) does not leave it bereft of work. A s334 dismissal may be made at any stage of the proceedings. Before the prosecution exercises a right of election, the charge is one which “may be determined summarily”. This preserves the position that the prosecution can refuse consent before it has made its election (which is to be done within 21 days or the second mention of the matter).
24. Before and even after a defendant has consented to summary disposal, the charge continues to be one which the court may hear and determine summarily (s375(10) Crimes Act). Unlike the case in which the prosecution has elected for summary disposal, where the defendant consents thereto, if the matter proceeds to sentence and the court determines that its powers of punishment are insufficient, the matter may still be committed for sentence. Where the defendant consents to summary disposal the maximum penalty is imprisonment of five years, or the statutory maximum between 2 and 5 years; in these cases, prosecution consent to dismissal would still be required.
25. However, to the extent that there is an inconsistency between s334(4) and s374(6), it must be reconciled by the application of regular principles of statutory interpretation.
26. Whilst a statute’s penal character in modern interpretation is to be given limited weight, it is a consideration to ascertain the statute’s legal meaning in light of its text, context and purpose: Grajewski v DPP New South Wales [2017] NSWCCA 251 [55] per Leeming JA.
27. It is a tenet of statutory construction that words in legislation have meaning. The phrase “or otherwise deal with” in s374(6) must have some meaning. It is broad, encompassing all manner of dealings according to law other than sentence. This might include a range of other dealings including disposition pursuant to s17 of the Crimes (Sentencing) Act 2005 (ACT), that is a finding of guilt without recording a conviction. There is no basis to infer that it would not include diversionary disposal such as envisaged by s334.
28. This approach is consistent with a purposive interpretation of the legislative scheme as required by s139 Legislation Act which provides:
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
29. The clear intent of s334 is to give the court discretion to divert less serious matters in which the defendant is suffering a mental impairment away from the criminal justice track without prosecution veto. Whilst there may be a number of considerations which factor in the prosecution decision to elect summary disposal, by accepting the sentencing cap that follows, the election concedes that the matter is properly disposed of summarily. It would be anachronous for a matter to be disposed of summarily in some ways but not in others – s374(6) addresses this by requiring that not only as to sentence but that “otherwise” a charge will be dealt with summarily.
30. A statute is to be interpreted as being internally consistent where possible. The application of the purposive interpretation achieves this. However, it is useful in this case in discerning legislative intent to consider the approach taken to the effect of the Crimes Act prosecution election in other legislation, specifically the Bail Act. Section 9D of that Act provides for a refusal of bail where a person is charged with a serious offence whilst an earlier serious offence is pending or outstanding. Sub-section 9D(6) provides:
"serious offence" means an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor's election).
31. Whilst clear words have been used in this section to provide that which must be inferred in s334(4), the intent is consistent; that is offences in which the prosecution has exercised its discretion for summary disposal ought be dealt with as a summary offence for all purposes.
32. I therefore determine that the assault occasioning actual bodily harm offence is amenable to dismissal pursuant to s334 without prosecution consent.
The substantive determination
33. Section 334 requires a determination of whether a person suffers a mental impairment as defined in section 27 of the Criminal Code and whether on an outline of the facts to be alleged in the proceedings or other relevant evidence, it is appropriate that the charge be dismissed either unconditionally or on condition of referral to ACAT.
34. In order to determine this issue, I have had regard to:
a. the facts to be alleged in respect to each of the offences;
b. the defendant’s criminal history;
c. a report for the ACT Civil and Administrative Tribunal (ACAT) by Dr Saba Javed, psychiatrist, dated 12 November 2019;
d. Justice Health Services Mental Health Consumer Assessment Forms dated 13 September 2019 and 24 July 2020; and
e. a letter from Dr Paul Appleton undated but filed in court 1 September 2020.
35. The most relevant factual circumstances for consideration relate to the charges of assault. The assault occasioning actual bodily harm was occasioned upon a person unknown to the defendant whom she came across in the street. The person’s sunglasses were grabbed from her face and broken and her face scratched in the course of the assault. She was then punched on the side of her head. This was accompanied with a tirade of verbal abuse. Whilst the injury suffered was relatively minor, it would no doubt have been a frightening incident for the complainant. The second assault arose in the context of the theft of a cup of coffee from a service station. When the assistants confronted the defendant, the hot coffee was thrown at their faces from a couple of metres away. This was associated with the defendant exposing her breasts to them and again a tirade of abuse. No doubt this incident would also have been disturbing to the complainants; the risk from the hot beverage being thrown at them was thankfully greater than the actual harm suffered. The remaining offences were relatively trivial. The fail to appear offences which in themselves frequently warrant condign punishment must be considered against the background of mental health issues being faced by this defendant and the complexity this creates in her life. Each of the offences are likely to be associated with her mental health condition, reflective of her “disordered thinking and behaviour” and “persecutory delusions” noted by Dr Javed. Whilst there is no requirement that any offending be related to a mental impairment, this is a relevant factor which the court may take into account (Nelson v Heil [2013] ACTSC 11, Refshauge J).
36. A number of mandatory considerations arise pursuant to subsection 334(3). The defendant has been diagnosed as suffering with a serious mental impairment in the form of a schizoaffective disorder which is chronic and treatment resistant and bipolar disorder with episodes of drug induced psychosis. In terms of how long these conditions are likely to continue, the defendant has had long-term mental health issues; these conditions are likely to continue into the foreseeable future. The fact that her schizoaffective disorder is described as chronic and treatment resistant supports this conclusion, as does the past and present requirement for psychiatric treatment orders. Her condition is serious, interfering significantly with her life.
37. A particularly pertinent consideration in this case is the extent to which by reason of her mental impairment the defendant is likely to do serious harm to herself or others. Certainly, her irrational decision-making, for example in relation to her own medical care, highlights the risk of harm from poor decision-making and also misadventure. Dr Javed reports “Ms Craggs is at risk of serious physical harm if she remains out of treatment for her schizophrenia. With her recent episodes of assault and admission following drug induced aggression, she remains a great threat to the community and herself. Although she has mentioned to not have any self-harm thoughts recently, it is important to understand the effect of the stressors in her life; her breast cancer and drug use.” He noted that appropriate treatment for her mental and other health issues would reduce her risk of harm both to and from others. Given my conclusion that the defendant’s alleged offending is related to her mental health condition, it may be inferred that her risk of harm to others is significantly greater if she is not adequately treated in respect to those mental health issues.
38. The court is required to consider whether ACAT could make a mental health order on referral. The defendant is currently subject to a psychiatric treatment order made on 25 May 2020 for six months. There have been earlier psychiatric treatment orders. Noting the defendant’s limited insight into her mental health condition, it is likely open, and appropriate, that future orders will be made. The prosecution submits that there is little utility in a diversion where the defendant is already subject to a psychiatric treatment order; however, one benefit of diversion in such circumstances is that the court is able to fully inform ACAT of the alleged criminal offending which may be a relevant consideration in respect to the ongoing need for a mental health order.
39. The defendant has a criminal history dating back many years and is recorded in Tasmania, New South Wales and the ACT. The majority of the offences for which she has been convicted are relatively minor. She has also had the benefit of a mental health diversion in New South Wales previously. I note that the defendant also had the benefit of a mental health diversion in the ACT in 2015. There were no further charges until 2019. Whilst it is not possible to draw a direct correlation between the benefit of the earlier order and the period without offending, it is possible to infer that intensive medical support is likely to reduce future offending by assisting to control the symptoms of the defendant’s mental illness, including aggression and impulsivity.
40. Noting my determination in respect to the assault occasioning actual bodily harm charge, the prosecution’s consent is not required for any dismissal in this matter. However, I note that it is advantageous to have a contradictor even where consent is not required. I particularly note the reservations expressed by the prosecution in relation to diversion of the assault charges reflecting as they do random attacks on innocent members of the public. As the prosecutor notes “the defendant’s refusal to accept treatment is directly related to her propensity to commit violent offences”. I accept this submission. In determining whether a dismissal is appropriate then, the court must consider whether a criminal response is more likely to achieve the protection of the public than a mental health diversion. Were the matter to proceed to conviction, a sentence may include either supervision by ACT Corrective Services or even potentially imprisonment. ACT Corrective Services supervision may be beneficial but largely in so far as it could facilitate the defendant’s access to mental health treatment. That can be achieved more directly by a referral to ACAT. Imprisonment is unlikely to be an appropriate disposition having regard to the defendant’s mental health and the likely application of the Verdins principles. The broader public interest is better served by mental health response in this case.
41. Having considered the above matters, I am satisfied that it is appropriate that each of the charges before the court be dismissed pursuant to section 334(2) of the Crimes Act with a referral to the ACAT.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker. Associate: Monique Marie Munro Date: 21 September 2020 |
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