Mower v Bozic

[2023] ACTMC 41

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Mower v Bozic

Citation: 

[2023] ACTMC 41

Hearing Date: 

30 October 2023

Decision Date: 

22 November 2023

Before:

Special Magistrate Richter

Decision: 

Application pursuant to section 334 dismissed.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Mental Impairment – s 334 of the Crimes Act 1900 (ACT) – consideration of whether the mental impairment is treatable or otherwise amenable to management

Legislation Cited: 

Crimes Act 1900 (ACT) s 334, division 13.6

Criminal Code 2002 (ACT) s 27

Mental Health Act 2015 (ACT) ss 9, 108

Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 19

Cases Cited: 

Gordon v Reddin [2013] ACTSC 87

Nelson v Heil [2013] ACTSC 11

Parties: 

S Mower ( Informant)

D Bozic ( Defendant)

Representation: 

Counsel

H Andriunas ( Informant)

A Byrnes ( Defendant)

Solicitors

ACT Director of Public Prosecutions

Andrew Byrnes Law Group

File Number:

CC 5511 of 2022

SPECIAL MAGISTRATE RICHTER:

Introduction

1․This is an application for an order under s 334 of the Crimes Act 1900 (ACT).

2․The defendant is charged with one count of driving with prescribed concentration of alcohol (PCA) in blood or breath contrary to s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), with a reading of 0.348 being level 4.

3․The circumstances of the offending are that at about 8:28 pm on 22 April 2023, the defendant had driven a green coloured Mazda into the garage of 18 Rule Street and into the fence of 35 Rule Street, Isaacs ACT.

4․Police arrived a short time afterwards and observed the defendant sitting on the curb near the vehicle, complaining of pain to his foot. They spoke to the defendant. He smelled of liquor and he was slurring his words. The defendant was obviously intoxicated, and a subsequent breath analysis test was conducted with a rating of 0.348.

5․The offence carries the following penalties for repeat offenders: (1) a fine of 20 penalty units ($3200), imprisonment for 12 months or both, and (2) a licence disqualification default period of 3 years or if the court orders a shorter period, then a minimum of 6 months.

6․This is against a background of having previously been convicted in the ACT Magistrates Court for offences of aggravated assault occasioning actual bodily harm (family violence) and aggravated damage property (family violence), for which he was on a good behaviour order at the time of the current offending.

7․His behaviour on the night of this offending was said to be in response to that sentencing outcome and an attempt to commit suicide.

Section 334

8․The provision appears in division 13.6 of the Crimes Act 1900 (ACT) which is headed:

Summary proceedings against mentally impaired people

9․The division generally, and s 334 in particular, applies to summary offences and indictable offences that may be heard and determined summarily. The charge referred to above falls into the summary offence category.

10․Section 334 permits the Court to make either an order dismissing a charge and requiring the accused to submit to the jurisdiction of the ACT Civil and Administrative Tribunal (ACAT) or to dismiss the charge unconditionally.

11․The Court can only do so where it is satisfied first that the defendant is mentally impaired and secondly that it would be appropriate to deal with the person under division 13.6. In reaching that second conclusion, the Court must have regard to an outline of facts to be alleged in the proceedings or any other evidence the Magistrates Court considers relevant. It must also have regard to the matters set out in s 334(3).

12․The purpose of s 334, which was introduced at the same time as the Mental Health (Treatment and Care) Act 1994 (ACT), was to permit mentally dysfunctional people who get caught up in the criminal justice system to be diverted into the mental health treatment system.

13․A reading of s 334 makes it clear that the Court is given a broad discretion as to whether or not it is more appropriate for a mentally impaired person to be dealt with exclusively by the mental health system and, if that is the case, to make one of the orders contemplated by subsection (2).

Evidence

14․The material relied on by the defendant was contained in a defence tender bundle tendered at hearing. It consisted of three sets of documents:

(a)Forensic psychologist assessment report by Leesa Morris dated 19 September 2023;

(b)Clinical notes by Curtin Consulting Rooms between 4 April 2016 and 24 February 2023; and

(c)Supporting correspondences from Dr David Westcombe taken on various dates.

Mental impairment

15․Under the Criminal Code 2002 (ACT) s 27:

27 Definition – mental impairment

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

(1)mental illness is 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.

16․However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

17․The defendant suffers from Autism Spectrum Disorder. It is apparent that this condition has been diagnosed for many years. The psychological report of Ms Morris also suggests that the defendant currently meets the criteria for F 10.21 alcohol use disorder, moderate, in early remission (i.e. less than 12 months since meeting criteria): page 4.

18․In the same report, Ms Morris indicates that the defendant has a ‘mental impairment’ in so much as he does not function as a neurotypical person and his reactivity to stressors would ‘involve some abnormality and is prone to recur’: page 9. However, she goes on to state that ‘Autism Spectrum Disorder does not neatly fit as a “mental illness” or “intellectual disability” and that is not a condition to be treated and/or to be cured’: page 10.

19․Ms Morris identifies that at the time of this offending, the defendant was experiencing significant emotion dysregulation as a result of his difficulty processing and adjusting to the outcome of his court matter.

20․The clinical notes from Dr Westcombe are that the mother had reported that the defendant had struggled – he was given a good behaviour bond but at the same time was ordered to attend Corrective Services for regular blood/urine, alcohol/drug tests, about which he felt distressed.

Potential outcomes

21․The material before me makes it clear that, even if I decide that s 334 of the Crimes Act 1900 (ACT) applies and the defendant’s Autism Spectrum Disorder is a ‘mental impairment’ for the purposes of the section, there is only one real outcome available if I exercise my discretion pursuant to s 334. That outcome would be to dismiss the charge unconditionally in accordance s 334(2)(b).

22․There is no treatment that could be the subject of an order of the ACAT and as such any order under s 334(2) would, in my opinion, be inappropriate.

Should the charge be dismissed unconditionally

23․In considering whether to dismiss the charge unconditionally, I must have regard to those considerations set out in s 334 (3):

334Powers of Magistrates Court

(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 Act 2015, section 101 (Forensic psychiatric treatment order) or section 108 (Forensic community care order); 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.

24․In relation to the considerations at ss 334(3)(a) and (b), the defendant is diagnosed with a Level 2 Autism Spectrum Disorder, and this is unlikely to change. There was no evidence before me as to where a ‘Level 2’ disorder sits in relation to any other subset of Autism Spectrum Disorder.

25․In relation to the consideration in s 334(3)(c), if I accept that on the night in question the defendant attempted to cause harm to himself as a result of the unexpected court outcome he had on 21 April 2023, this will not of itself be decisive. His actions were not only harmful to himself, but also to other members of the community.

26․Counsel for the defendant argued before me that the ACAT could make a Forensic Community Care Order under s 108 of the Mental Health Act 2015 (ACT).

(a) A Forensic Community Care Order is only available where the defendant has a ‘mental disorder’, which is defined in s 9 of the Mental Health Act 2015 (ACT) as not including a mental illness.

(b) Section 108(2) of the Mental Health Act 2015 (ACT) limits the circumstances in which such an order can be made. Particularly relevant in this case is the provision in s 108(2)(g):

108 Forensic community care order

(2)The ACAT may make a forensic community care order in relation to the person if—

(g)the ACAT is satisfied that the treatment, care or support to be provided under the forensic community care order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.

(c)   The clear evidence before me is that the defendant has been under the continuing treatment of Dr Westcombe, as indicated in his clinical notes, for a significant number of years in relation to his various disabilities, and that treatment has been ongoing. In addition, on the basis of the report of Ms Morris, there is no ‘treatment’ nor is there a cure, however the defendant had reported to her an improvement in his functioning: page 6.

27․This then brings me to the consideration of the defendant’s antecedents, and the seriousness of the current offending.

28․As stated previously, the defendant had been sentenced in this court on 24 April 2023 for offences of aggravated assault occasioning actual bodily harm and aggravated property damage.  In addition to that offending, he has relevant prior convictions for:

(a)Common assault, sentenced on 8 February 2006; and

(b)Special driver driving with PCA in blood or breath (0.118, level 3), sentenced on 16 November 2005.

29․Whilst those offences are quite aged, in my view the PCA offence is particularly relevant given that the circumstances of this offending involving driving with a very high level of alcohol in the defendant’s blood. It creates an uplift in the penalty which would normally be imposed for a drink driving offence.

30․A high range PCA offence is a serious offence under road traffic legislation. It is a matter of common knowledge that at the level of intoxication represented by a reading of .150, the person must have consumed quantitative alcohol that would manifestly influence his or her driving skills (Gordon v Reddin [2013] ACTSC 87 per Nield AJ), and arguably their decision to drive.

Appropriate decision

31․The question which is properly before me is not whether a diversion pursuant to s 334 is ‘lenient’, but taking into account all of the considerations, including whether the impairment is treatable or otherwise amenable to management within the mental health system. If not, diversion to the ACAT may be pointless: Nelson v Heil [2013] ACTSC 11.

32․Given my observations above, I am of the view that such a referral would, in this case, be pointless.

33․The public policy considerations in relation to drink driving are evident from the loss of licence penalties that flow from that type of offending.  This is a serious example of a drink driving offence, albeit in circumstances that are unusual and were no doubt brought into existence by the defendant’s emotional dysregulation.

34․Diversion pursuant to s 334 of the Crimes Act 1900 (ACT) is not appropriate in this case, and I dismiss the defendant’s application.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for the Decision of his Honour Special Magistrate Richter.

Associate: Susie Kim

Date: 19 January 2024