Mo v Director of Public Prosecutions

[2023] NSWDC 27

District Court

New South Wales

Medium Neutral Citation:

Mo v Director of Public Prosecutions [2023] NSWDC 27

Hearing dates:

15 February 2023

Date of orders:

15 February 2023

Decision date:

16 February 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 80

Catchwords:

CRIMINAL LAW – offence of leaving substance with intent to cause alarm – Crimes Act 1900 (NSW) s 93R

MENTAL HEALTH – all grounds appeal from Local Court - whether charge should be dismissed and discharged because of apparent mental health impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020, s 14

Legislation Cited:

Crimes Act 1900 (NSW) ss 3A, 93R

Criminal Legislation Amendment Act 2001 (NSW) s 93I

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 14, 15

Mental Health (Criminal Procedure) Act1990 (NSW)

Cases Cited:

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

DPP v El Mawas (2006) 66 NSWLR 9

Muldrockv The Queen (2011) 244 CLR 120

Veen v The Queen (No.2) (1988) 164 CLR 465

Texts Cited:

Second Reading Speech of the Attorney General, Legislative Assembly, Hansard, 30 November 2001

Category:

Principal judgment

Parties:

Mr M Mo (Appellant)
Office of the Director of Public Prosecutions

Representation:

Counsel:
Mr S Howell for the appellant

Solicitors:
Hugo Law Group for the appellant
Ms A Khander for the ODPP

File Number(s):

2021/00193111

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Parramatta Local Court

Jurisdiction:

Local Court

Date of Decision:

20 May 2022

Before:

Magistrate G Grogin

File Number(s):

2021/00193111

REASONS FOR JUDGMENT

Introduction

1. On 20 May 2022, Mr Max Mo was convicted, following a plea of not guilty, by the Parramatta Local Court of the offence that between 4 and 5 March 2021 at Camperdown, and contrary to s 93R of the Crimes Act 1900 (NSW), he left in the lifts of a building a light (white or yellow) coloured powder (sulphur) with the intention of inducing a false belief that the said substance was likely to be a danger to the safety of occupants of the building. The building was on the campus of the University of Sydney.

2. A legislative guidepost to the seriousness of the offence is the maximum penalty for the offence, when tried on indictment, which was 5 years imprisonment; although when tried summarily, as it was here, the maximum penalty, attributable to the jurisdictional limit of the Local Court, was two years’ imprisonment (and/or an $11,000 fine). It is pertinent to note, however, that the offence is a Table 1 offence, which means that it is dealt with summarily unless election is made. That did not occur in this case.

3. After the conviction, the learned Magistrate subsequently sentenced Mr Mo to a term of imprisonment to be served by an intensive correction order, for a term of 1 year.

4. In the Local Court, Mr Mo’s then legal representative eschewed any application that his client might make under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act).

5. Mr Mo now appeals his conviction and applies under s 14 of the Act for the charge to be dismissed, with Mr Mo to be discharged. I will henceforth refer to Mr Mo as the appellant.

6. Counsel for the appellant indicated at the outset of the hearing that no point was taken that the Crown was unable to prove the mental element set out in s 93R(1)(b) for the offence in question.

7. If the application under s 14 is unsuccessful, the appellant indicated that he would apply for leave to commence a severity appeal.

The ambit of the dispute

8. Before the Court, the Crown accepted that at or about the time of the commission of the offence, the appellant suffered from a mental health impairment, which made him eligible to make the application under s 14 of the Act.

9. The primary question was whether it was more appropriate for the appellant to be dealt with in accordance with the Act, rather than otherwise in accordance with the law. Section 15 of the Act provides an essentially non-exhaustive and discretionary list of considerations for the Court when determining this question.

10. In the way that the dispute was run before the Court, it was common ground that the pivotal question for assessment of the ultimate question that I have identified concerned s 15(b), that is the nature, seriousness and circumstances of the alleged offence.

11. I will commence my reasoning with reference to that circumstance, before considering other circumstances in s 15 as may be relevant.

The nature, seriousness and circumstances of the offence

The facts

12. In the Local Court, the appellant and the Crown agreed that:

1. the appellant was (until the events of this proceeding) a PhD candidate student at University of Sydney from 2017 to 2021 in the Faculty of Medicine and Health. His PhD was in the field of medical science;

2. before that he was an undergraduate studying Bachelor of Science in 2011 to 2016;

3. in late 2020 and early 2021, changes were made by the University which effected a number of staff and High Degree Research (HDR) students, including the appellant;

4. part of those changes involved the relocation of students, staff and associated laboratories to a different building, referred to as the K25 building, and also known as the Medical Foundation Building (MFB);

5. this building houses PhD students, researchers and academic staff, as well as laboratories including ‘wet labs’, in which scientific experiments were conducted;

6. the staff and students affected by the changes (irrespective of whether they supported or opposed them) were identified in annexure A to the agreed facts;

7. a number of students were dissatisfied with the changes which they regarded as being unnecessarily disruptive to their studies;

8. a group called ‘Students Against Disruption’ (‘SAD’) came into being to protest those changes and to lobby the University or the Faculty about those issues;

9. The nominal head or organiser of SAD was Luke Gordon. He forwarded various pieces of ‘open’ correspondence to faculty staff from his university email address setting out the group’s concerns and position. Within the emails that were sent, one of the 12 students identified as being involved with SAD was the appellant;

10. on the morning of 2 March 2021, a small number of A4 printed posters were found hanging in communal areas of K25, including the lifts. The appellant was responsible for those posters;

11. on the evening of 4 March 2021, the appellant attended the K25 building in connection with his studies and the ongoing preparation of his thesis;

12. the appellant had in his shared student office a small number of A4 printed posters and, at some time that evening, decided to hang some of them. (A search of the appellant’s home discovered computer files was consistent with him being the author of a poem which appeared on posters from an earlier date). He was lawfully on the premises, having access to the premises by means of his own identifiable security swipe card. Swipe card access was required at all times for entrance to the K25 building and limited access to those with appropriate permission to be in the building, such as relevant academic and laboratory staff and students were housed in the building;

13. the appellant hung two posters in a lift before departing that evening. In the Local Court there was some photographs depicting those posters;

14. behind one of those posters, the appellant placed a small quantity of powdered sulphur, having obtained that substance from within the laboratories in the K25 building that evening. Powdered sulphur is a benign substance, with no harmful effects and is recognisable by yellow colour and a distinctive ‘rotten egg’ smell;

15. powdered sulphur is commonly seen and used by students and staff within the Faculty and the K25 building’s laboratories. It is readily available and in the laboratories for use by students. The substance is not locked up and requires no particular authority or permission for a student to access or use;

16. on the morning of 5 March 2021 a staff member attempted to remove the posters in the lift and the sulphur powder fell onto the floor. One photograph that was in evidence in the Local Court depicted coloured substance on the floor in the lift with a half-ripped poster;

17. Mr Goran Lopatki, a laboratory manager responsible for the ‘safe operation of biomedical research’ and the ‘safe conduct of experiments’ was called to the lift. He immediately and correctly identified substance;

18. A Fire Brigade was called and safety measures were put in place, an immediate on-site test identified substance as sulphur.

13. Other facts adverted to by the Crown at the hearing of the appeal, without contradiction from the appellant, included that over 30 people were evacuated from the building. Three firefighters in suits and self-contained breathing apparatus entered the building, with chemical detection equipment, and removed the poster from the lift and other posters from level 3, which contained no hidden substance.

The appellant’s explanation

14. The appellant elected to give evidence in the Local Court. Pertinent features of his evidence included that:

1. after being in the building for a few hours during the evening (which he said was not uncommon), working on his thesis and performing some minor lab work, he made a last minute decision to hang up more posters that were in his office;

2. he made an impulsive decision to take sulphur from the laboratory he was working in;

3. he felt under enormous mental pressure and did not turn his mind to the reaction of other persons;

4. his intention was to create a ‘minor annoyance’, believing that the substance was common and the building was full of science staff who would readily recognise it as such;

5. he did not anticipate, at the time of his conduct, the reaction that his conduct would cause the involvement of the Fire Brigade. He did not anticipate anything more than the necessity for a vacuuming and wipe down of the lift;

6. he believed that anyone with access to the building, with its laboratories, would have chemical safety training;

7. he did not turn his mind to the presence of cleaners, or security staff within the building; although he expected that cleaners might clean up the substance upon discovery in the lift;

8. he accepted responsibility for his acts for hanging the poster and inserting the sulphur; acknowledging that it was not an ‘accident’;

9. he said that his purpose in hanging the posters was to illicit a reaction from students and staff (including the Dean) in the University. He denied seeking a reaction from the University or at least management, but rather wanted a reaction from his fellow students;

10. he said that he had a positive intention to put the sulphur (which he obtained from the laboratory) and place it behind the poster; and

11. he agreed that another substance could be mixed with sulphur that could not be detected by the eye or smell (if the other substance had no smell itself).

15. In a letter of apology that was before the Local Court (a redacted version of which was before this Court), the appellant unreservedly apologised for his conduct; acknowledging that he had done significant harm to the community and having wasted valuable resources.

Submissions

16. The Crown emphasised that the appellant had placed posters on 2 March, which had been pulled down. This was a significant contextual circumstance: the appellant’s offending conduct all amounted in effect to an escalation of what had occurred days before: for one of the two posters which he placed one of them had sulphur behind it. Although the appellant had said that his purpose was to bring issues to the attention of students and staff, the Crown submitted that his real purpose was to elicit a strong reaction from the University executive. The Crown submitted that the appellant had knowingly taken the yellow substance and carefully placed it behind one poster in the knowledge that the poster would be taken down (as it had before) and in the process of being taken down, would likely cause fear. Mr Lopatki, as the responsible laboratory manager who was called to review the substance, readily identified it as sulphur but was understandably concerned that the substance could be laced with another substance and was justified in calling the relevant authorities for safe examination. His conduct caused the University to be shut down, affecting several HRS and other persons and diverting the public resources of the Fire Brigade and police during a pandemic.

17. Counsel for the appellant submitted that the conduct was not planned in any real sense and that the motive was akin to industrial action; ie action intended to generate change. He emphasised that the substance itself was readily available in the laboratory. Although he acknowledged that the incident occurred in a public place, it did not occur in a place quite as public as, say, Martin Place in the Sydney, but occurred in a building in which a limited class of persons (students or staff) had access.

Consideration

18. Section 93R of the Crimes Act has received apparently little or no judicial attention, either in its construction or in sentencing decisions; although there are some statistics on JIRS which deal with decisions by Magistrates. This may be attributable to the circumstance of it being on the statute books for approximately 20 years and perhaps also its being a Table 1 offence. At any rate, the Crown did not refer to any judicial authority and my limited research did not reveal any such authority.

19. The provision falls within Part 3A of the Crimes Act, which generally concern offences against the public order. It also falls under Division 4 titled ‘Bomb and other hoaxes’.

20. The provision was originally enacted by the Criminal Legislation Amendment Act 2001 (NSW). That provision was originally s 93I, but in 2007, the provision was renumbered. Extrinsic material indicates that the provision (and s 93Q) was designed to overcome a lacuna, and emphasised that it was unnecessary for the offence to be made out that criminal damage was necessarily sustained (Second Reading Speech of the Attorney General, Legislative Assembly, Hansard, 30 November 2001), but there is not much more that can be divined in terms of legislative purposes from that material.

21. In my view, however, it is important to note as a contextual matter the timing of the enactment of the provision. It is common knowledge that in late 2001, the United States, and the world generally, was still reeling from the attacks on September 11; and not long thereafter, there were reports of anthrax spores being deposited in letters mailed to US Senators. It is not, I think, too much to infer that Parliament would have been aware of the prospect that, short of dangerous conduct of that kind, persons inclined to create mischief, or worse, might deploy articles or substances, which were otherwise benign or innocuous, to falsely create alarm and even terror in the community as a means of propagating or disseminating viewpoints.

22. Being an offence against public order, however, although the extrinsic material emphasised that actual damage (in the sense of danger or harm) was unnecessary to prove, as an element of the offence, an important gauge of seriousness is the actual or likely effect, or result, of the inducement of the false belief on the person(s) exposed to the substance (or article). That is the actual and/or likely reaction of the person(s) who the offender intends to hold the false belief. A false ruse may cause mayhem, much like the hallowed example of the person who deliberately and falsely yells ‘fire’ in a crowded theatre room. On the other hand, it might have little actual effect at all. For the purposes of s 93R, the more inherently or obviously dangerous quality of a substance or article appears to others, the more likely it will generate alarm.

23. Viewed in that light, objectively, the facts suggest that the offending was serious. Most significantly in the events that ocurred, the scarce resources of the fire and police services were called upon.

24. There is some force in a point that was later put by his doctoral supervisor, Dr Camp, that the appellant had access to some very dangerous and harmful substances if he really wanted to spread alarm, but the substance he chose – sulphur – was something that could be acquired at a ‘joke shop’. Nevertheless, the circumstance that the substance he chose was itself benign does not adequately answer the point that Mr Lopatki’s particular concern was not so much that the sulphur (that he readily identified) would cause damage, but the possibility of its being mixed with some other substance. No one suggested that he overreacted upon seeing the substance, or did anything other than act responsibly or prudently in acting as he did. (Mr Lopatki’s witness statement was tendered by consent in the Local Court, and Mr Lopatki was not required to attend the hearing for cross-examination). The appellant accepted that another substance could, by reason of its colour or absence of smell, be mixed in with the sulphur. In such a way it could easily be disguised. So, although the sulphur which the appellant left behind was not inherently or obviously dangerous by itself, it potentially could be viewed by others exposed to it as such if it happened to be mixed with other substances.

25. In those circumstances, the calling in of fire brigades and police was at least a foreseeable consequence of the offending. Whilst on the matter of the fire brigades and police, I do not find convincing a point raised by the Crown that the resources of these agencies were diverted in a pandemic as a result of the offending. True enough, the COVID-19 pandemic was occurring at the date of the offence, but that is also the case today. The Crown did not point to any lockdown in place on the date of offending, being a phenomenon which truly did stretch at least police resources in terms of enforcement of onerous restrictions on people’s freedom of movement.

26. It is of significance about the location in which the substance was left and the limited ascertainable class of persons who were, or potentially could be, affected, being those with a swipe card to the particular building in question.

27. Also, the sulphur was readily accessible within the building, which lends some support to the proposition that the offending did not involve significant planning or sophistication. Further, the appellant’s evidence was not seriously dented when, under cross-examination, he was challenged about his declared impulsive decision to place the sulphur behind a poster. That being so, and contrary, with respect, to the view of the learned Magistrate, I accept that the offending did not involve significant planning.

28. I agree with the Crown that the offending can be seen as an intended escalation to what had occurred two days before, with the earlier removal of the posters. I infer that the appellant realised that, whether or not his targeted audience was university or faculty management, or students and staff, his earlier hanging of a poster in the lift of the building was ineffective to achieve his, or the SAD’s purposes, and that he took the step that he did to give greater prominence to the issues that the SAD wished to agitate. He might also be taken to have meant for the sulphur to be seen, and eventually detected; when the poster was removed – as the appellant expected it was going to be removed - and at least cause initial alarm in the minds of the unfortunate person whose responsibility it was to remove the poster. That would not necessarily have been a HDR student, or staff member of the Faculty of Medicine and Health but conceivably have been a humble cleaner. As it was, according to Mr Lopatki (and was at any rate an agreed fact) it was detected by a Faculty member. In the Local Court, no evidence was taken from that faculty member as to her reaction, and what she perceived about the threat or otherwise of what she discovered. The evidence did not go further than indicating that she merely reported the matter to Mr Lopatki.

18. So far I have addressed predominantly objective matters that relate to the offending, but s 15(b) of the Act refers generally to ‘seriousness’ of the offending. That more general word brings into consideration the motive behind the offending and other subjective matters such as the extent of the harm the appellant foresaw as a result of his inducing the false belief.

19. I accept, on the probabilities, that the appellant intended a minor annoyance and that he did not actually anticipate the reaction that his conduct generated, especially the wastage of the resources of the fire brigade and police services. Relevant to this finding is the circumstance that he was conscious of fellow protesters and other friends, including his doctoral supervisor possibly being in the building. Further, I consider on the probabilities, that he thought that, in the location where it was stored and where it was likely to be detected, it would readily have been appreciated that the substance (sulphur) he chose to put behind the poster was inherently benign. I do not consider that he actually turned his mind to the possibility adverted to by Mr Lopatki, being that the substance would, with other matter, be potentially converted into something that was actually dangerous; regardless of whether or not he should have. In short, I am not satisfied that he intended to cause serious inconvenience. From his subjective viewpoint, he was trying to elevate what I accept was an industrial or administrative cause by dint of a prank which went badly wrong. It was, all in all, as his Counsel accepted, a poor decision with unintended consequences.

20. The limitations of his thinking were indicated when, under cross-examination in the Local Court, he indicated that he did not turn his mind to the possibility that those without a scientific background, such as cleaners (who might have to clean up his mess), or security staff might become alarmed; nor to the possibility that others, like Mr Lopatki, might be concerned that the sulphur was laced with something else which, in combination with the sulphur, would produce a substance that was altogether more harmful. Accepting that this was so, however, this state of mind regarding the anticipated harm resulting from the inducement would amount to negligence; and probably gross negligence: it does not get the Crown to the point of proving that he actually foresaw, or was reckless about the actual reactions which his conduct had caused. At any rate, in the way that his case was run in the Local Court and in this Court, the appellant did not take issue that, for the purposes of s 93R(1)(b), he intended to induce a belief in others that the substance he left was likely to be dangerous.

21. Finally, the non-disputed circumstance that the offending occurred when the appellant had a mental impairment itself is a matter which reduces the seriousness of the offending by reducing his culpability: Veen v The Queen (No.2) (1988) 164 CLR 465 at 476-7.

22. Weighing the matters in question, considering the objective with the subjective circumstances, the offending was serious but not very serious. In particular, it was serious in terms of the consequences that the conduct caused. It was not especially serious in the other respects considered, including the appellant’s motive and planning and limited foresight of the circumstances that eventually occurred.

23. I do not accept that the nature and seriousness of the offending is such that, viewed in isolation, it is a consideration that is decisive, or compels the application of the criminal law or put another way, that it should effectively disqualify the appellant from eligibility for an order being made under s 14 where other circumstances might favour such order.

24. I will now turn to the other considerations relatively briefly, given that there is no serious disagreement between the Crown and Counsel for the appellant about them.

Nature of the mental health impairment

36. As indicated the Crown did not cavil with the existence or nature of the mental impairment. At least in this Court, it did not challenge the opinion of the psychiatrist, Dr Olav Nielssen, which diagnosed that the appellant suffered a depressive illness at the offending (the depression now being in partial remission) but also possible underlying psychotic illness. Dr Teoh, another psychiatrist, had diagnosed ADHD.

37. The appellant also relied upon a diagnosis of his former psychologist, Dr Bradley Jones, that the appellant was suffering from a persistent depressive disorder and adjustment disorder; and determined that the depression arose prior to offending.

38. The depression was undiagnosed at the time of the offending. It had not been investigated until the appellant had attempted an act of self-harm. The tentative opinion regarding a form of psychotic illness arose through a family history of schizophrenia, aspects of the appellant’s developmental history and the appellant’s account to Dr Nielssen of delusions of reference in his interpretation of events around the time of the offending. In this regard, the appellant had apprehended being subject to surveillance and inconvenience by the university.

39. Importantly, Dr Nielssen concluded the existence of a causal connection between the appellant’s mental impairment and the offending in the following terms:

“The connection between the symptoms of his mental illness and his behaviour can be understood in the impairment in the capacity for logical thinking associated with his combination of disorders, including the effect of persecutory delusional beliefs that emerged around the time of the offence. From the information that is available, it seems likely that (the appellant) developed abnormal beliefs and engaged in uncharacteristic and atypical behaviour as a result of severely depressed mood, disturbed sleep and the anxiety associated with the restructuring of the department and the deadline to submit his doctoral thesis.”

40. With reference to the ‘abnormal beliefs’, earlier in his report, Dr Nielssen alluded to comments from the appellant’s doctoral supervisor, Dr Camp, towards the end of the appellant’s completion of his PhD, when the appellant complained of being bullied, victimised or ‘gaslit’ by the University and pointed to some strange acts by the appellant: he ‘was trying to do something in the lab to help somebody else and created a reaction to inflate balloons’. Dr Camp had also referred to the strange quality of posters which the appellant had put up that were not part of the official campaign of the SAD.

41. In its written submissions, the Crown focussed upon the appellant’s mental health decline stemming from stressors in his deadline to complete his PhD and stressors of the restructure of the University. Counsel for the offender agreed with this, whilst adding that there were also pressures from COVID-19.

42. The Crown ultimately accepted at the hearing that a connection existed between the mental impairment and the offending, but submitted that it was not strong. Ms Crown referred to the escalating conduct occurring over days. I did not, however, understand Dr Nielssen to be specifically turning his mind in question to a narrow connection between the appellant’s mental condition on the particular day(s) of the offending. Given the nature of his condition and the stressors operating upon it, the connection was broader than the Crown argued.

43. At any rate, the Crown accepted that the appellant’s conduct was illogical, irrational and uncharacteristic; if not being totally delusional.

Suitability of sentencing options

44. The Crown submitted that any treatment for the offender for his mental health could be encapsulated within the sentence imposed by the Local Court. Counsel for the offender did not disagree with this; arguing that it could not be said that sentencing options under the criminal law were unsuitable. Injecting a note of realism, Counsel indicated that one way or the other, he should and would receive close communal supervision.

45. In this way, I consider this factor to be essentially neutral on the question of what is the appropriate pathway.

Changes in circumstances since commission of the offence

46. This was a matter that was emphasised by the appellant. Counsel referred, specifically, to a report from Dr Teoh (Exhibit 3). That report was prepared after the date when the appellant was convicted. The psychiatrist stated that he had commenced the appellant on Ritalin to treat the appellant’s ADHD.

47. Kate Hollingsworth, an accredited mental health social worker, also saw the appellant after his conviction and reported on counselling that had been administered on a weekly basis. She reported that the appellant was engaging well with that counselling and noted improvement since her initial presentation.

48. Dr Jones’ report was obtained only after the date of the appellant’s conviction even though it referred to an assessment which preceded it.

49. The Crown fairly conceded that the appellant had shown commitment to his treatment for mental health since the offence. The Crown noted that Dr Nielssen considered that the appellant was no longer mentally ill, but recommended he continue with his treatment plan.

50. This consideration strongly supports the appellant’s application.

Criminal history of the appellant

51. The appellant was just short of 29 years of age when the offending occurred. It was common ground that he had no prior criminal history.

52. The absence of a prior history reduces the force of a need for a punitive response to the appellant’s conduct and favours the appellant’s application.

Any prior order for diversion

53. It also common ground that this factor was inapplicable.

Existence of treatment plan and its content

54. Kate Hollingsworth indicated that she was happy to remain as the appellant’s treating counsellor for the foreseeable future. Dr Teoh similarly confirmed that he was happy to be his treating psychiatrist for the foreseeable future. Dr Teoh had also indicated that the appellant had been compliant with the Ritalin he had prescribed since June 2022.

55. Dr Nielssen opined that the appellant was likely to require ongoing treatment for his depression and should remain under the care of a psychiatrist. He endorsed the appellant resuming his treatment with Dr Teoh and attend appointments at such intervals as the latter determined; and that he take such medication and undertake such further counselling as Dr Teoh recommended.

56. In an affidavit affirmed by the appellant, to which I refer to at greater length later in these reasons, the appellant referred to his taking Citalopram as well as Ritalin. The appellant reported positive effects, on his level of insight into his mental health and management of his depressive illness, of this medication.

57. On the basis of this evidence, Counsel for the appellant crafted a treatment plan to consolidate these steps.

58. The Crown did not submit that such plan was inadequate or should be augmented. I accept that the treatment plan would be appropriate in the circumstances.

Risk of endangering safety of himself of others

59. The learned Magistrate acknowledged the appellant as being an ‘exceptional young man’ who had never previously been in trouble with the law.

60. Dr Jones opined that the appellant was at low risk of committing further offences.

61. Ms Crown agreed that there were low prospects for the appellant re-offending and did not dispute the appellant’s contention that he was highly unlikely to endanger his own safety or the safety of any other person. Accordingly, the sentencing consideration of protection of the community would have little force.

62. This consideration supports the appellant’s application.

Other relevant circumstances

63. The last consideration presents a convenient segue into the last point. It is that the appellant has already sustained a form of extra-curial punishment.

64. The appellant affirmed an affidavit (14 February 2023) in which he deposed to the heavy price he has paid for his conduct as a result of the disciplinary processes of the University of Sydney applied to his offending conduct.

65. The context was that the appellant commenced a PhD in 2017 and in 2021, the year of the offending, he was in the process of completing the PhD. Indeed he completed it on 30 June 2021, over three months after the commission of the offence, and submitted it for marking. But because of the criminal proceedings against him, the University did not submit it for review.

66. On 27 September 2022, he was notified that he had been expelled from the University and also the object of a reprimand. The appellant deposed that the expulsion would be recorded on his academic transcript and his enrolment was terminated. The appellant appealed his expulsion, but was recently notified that his appeal was unsuccessful.

67. In the balance of his affidavit, the appellant deposed to his personal circumstances and efforts to obtain employment. He enrolled in some online computer programming courses. He started teaching
    English to a person in Ukraine. Since January 2023, he has commenced work full-time with a family friend, a plumber. For someone with his qualifications, I infer that the loss of the opportunity for study in his chosen professional field would be devastating and, given his character, an enduring sense of shame.

68. It can fairly be said that the University’s disciplinary sanctions have more than discharged any need for specific deterrence should he be subject to the ordinary sentencing law. It might also be fairly added, in a similar sense, that the consideration of general deterrence ordinarily applicable to an offence of the instant kind would have much lesser force given the appellant’s mental condition at the time of offending (Muldrockv The Queen (2011) 244 CLR 120 at [53]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]).

69. He has also satisfied a community services component of a community corrections order since June 2022.

Overall assessment

70. The appellant’s Counsel emphasised that when deciding to make an order under s 14 of the Act, the Court must balance purposes of punishment against the public interest in diverting a mentally impaired person from the criminal justice system. Counsel submitted, in effect, that the matters referred to in s 15, when applied to the facts, favour diversion.

71. The Crown submitted that the appellant was the author of his own misfortune. He needed to be made accountable for his conduct. Administration of the ordinary sentencing law would better serve the purposes of deterrence and reduce the risk of recidivism. He can be dealt with by other sentencing options that would include a longer period of supervision, instancing a bond.

72. The appellant’s primary submission emphasising the duality in public interest considerations appears based upon, or at least reflects, the proposition which McColl JA advanced in DPP v El Mawas (2006) 66 NSWLR 93 at [71], in connection with the since repealed Mental Health (Criminal Procedure) Act1990 (NSW). In that decision, the Court of Appeal noted that the second limb of the test required a Magistrate to exercise an entirely discretionary decision.

73. A point of difference with the Act, in comparison with the former legislation, is that by s 15, Parliament has expressly set out certain discretionary considerations, rather than leaving the discretion to be exercised more at large. Nevertheless, I accept that the balance of which McColl JA spoke, between competing public interests, remains to be considered and adjudicated. Moreover, I note that at [79], her Honour also accepted that the diversionary route may apply even to serious offenders, so long as it was determined that this was preferable to the application of the criminal justice system.

74. Having considered the range of discretionary factors in s 15, on balance they favour diversion. The appellant is not a serious offender. As I have indicated, the offending was well short of being the worst of its kind in terms of its seriousness. He has a treatment plan involving prescribed medication and a treating psychiatrist and psychologist which appears to be working. Significantly, this plan came into being, effectively, after he was convicted in the Local Court. He is a person of previously unblemished character.

75. The Crown’s reference to the criminal justice system as providing an appropriate pathway to facilitate general deterrence and accountability is unpersuasive. It overstates the significance that should be ascribed to general deterrence for a person who, at the time of the offending, had a rather complex combination of mental conditions which, if the factor was considered under ordinary sentencing principles, would likely render the appellant an inappropriate vehicle for general deterrence. The implicit suggestion that diversion would not make the appellant accountable should be rejected. It presupposes that the appellant will evade detriment. However, an order for diversion is neutral as to whether the offence is proven or not (s 14(2)). The discharge which the appellant’s Counsel proposes will not be unconditional. As I indicated earlier, the principles of specific deterrence, not to mention retribution or denunciation, have been more than given force to having regard to the very serious disciplinary sanctions visited upon the appellant which has not only inhibited – possibly for all time - a promising career path but also, incidentally, deprived the community of the benefit of the research built up in a PhD on a subject (age-related Dementia and Parkinson’s disease) of great contemporary significance which had been completed over four years. If the matter were dealt with under sentencing law, the appellant could also point to significant progress in rehabilitation. Given my finding that he is unlikely to endanger anyone, it also follow that if he was sentenced in the criminal justice system, he would be on solid ground in arguing that his prospects of reoffending were low.

76. This is a case where the issue of the mental condition of the offender should, without criticism of anyone, have been front-loaded, rather than embraced belatedly after the conviction and sentence.

77. This Court, when stepping into the shoes of the Magistrate, is empowered to dismiss the charge and order a discharge unconditionally or under the other alternatives in s 14(1) of the Act.

78. In anticipation that the Court may accede to making an order under s 14, Counsel for the appellant proposed conditions placing the appellant under the care of a responsible person and also concerning treatment for the appellant’s mental health impairment. The Crown did not cavil with the adequacy of the conditions if the Court rejected its contention that the appellant should not be diverted. Having considered the content of the conditions, which effectively amount to a continuation of treatment received since conviction, and also the evidence of the appellant’s progress, I find that those conditions are appropriate.

Orders

79. Mr Mo, please stand.

80. For the above reasons:

1. The conviction for sequence 2 of 1 April 2022 and sentence of the appellant imposed by Parramatta Local Court on 20 May 2022 are, respectively, set aside.

2. The charge under s 93R of the Crimes Act 1900 (NSW) is dismissed and the defendant is discharged upon his coming under the care of Ms Kate Hollingsworth for a period of 12 months (commencing 16 February 2023), subject to condition that he participate in a treatment plan constituted by:

1. his attendance for appointments with Dr Teoh every three months, or as otherwise directed by him;

2. his attendance for counselling with Ms Hollingsworth on a weekly basis, or as directed by her; and

3. his continuing to take medication as prescribed for him.

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Decision last updated: 16 February 2023