NADEBAUM v POLICE

Case [2019] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

NADEBAUM v POLICE

[2019] SASC 102

Judgment of The Honourable Justice Lovell

25 June 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

The appellant was sentenced in the Magistrates Court to a term of imprisonment for a number of offences committed between 2015 and 2018. The appellant is a person of borderline intelligence and has a psychiatric disability. She appeals against her sentence on the basis that it is manifestly excessive due to errors made by the Magistrate.

Whether the Magistrate adequately considered the principle of diminished responsibility – whether sufficient weight was given to the principle of rehabilitation – whether personal deterrence is appropriate where psychiatric disability

Held, allowing the appeal:

1. The Magistrate erred in properly considering the effect the appellant’s psychiatric diagnosis had on her behaviour and moral culpability.

2. The Magistrate erred in not considering whether personal deterrence would be effective considering the appellant’s psychiatric condition.

R v Jongewaard [2009] SASC 346; House v The King (1936) 55 CLR 499; Wong v The Queen (2001) 207 CLR 584; Hili v The Queen (2010) 242 CLR 520; R v Kreutzer (2013) 118 SASR 211; R v Morse (1979) 23 SASR 98; Markarian v R (2005) 228 CLR 357; R v Wiskich [2000] SASC 64; R v Hronopoulos [2017] SASCFC 143; R v Tsiaras [1996] 1 VR 398; Mason-Stuart v The Queen (1993) 61 SASR 204; R v Douglass [2019] SASCFC 67, considered.

NADEBAUM v POLICE
[2019] SASC 102

LOVELL J:

Overview

  1. The appellant, a person of borderline intelligence and with a psychiatric disability, was sentenced in the Magistrates Court to a term of imprisonment of one year, five months and 15 days with a non-parole period of 10 months for a number of offences committed between 2015 and 2018. The appellant appeals the sentence, contending that the Magistrate made a number of errors leading to the sentence being manifestly excessive.

    Background

  2. The matter has a complex background.

  3. At the time of sentence, the appellant was a single 32-year-old woman who was unemployed and receiving Newstart benefits. She had an extensive psychiatric history. A neuropsychological review found her IQ to be in the “extremely low average to borderline” range. Of importance is that the appellant, in May 2009, had been diagnosed by her treating psychiatrist, Dr Jennings, as suffering an Intermittent Explosive Disorder. Dr Jennings had been treating her since that time for that disorder.

  4. On the 18 March 2014, the appellant was sentenced, in relation to earlier offending, on two counts of assault and one count of threaten to cause harm. Dr Jennings provided an opinion that at the time of the offending the appellant was mentally incompetent…

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AGLC
NADEBAUM v POLICE [2019] SASC 102
Case
[2019] SASC 102
Decision Date

CaseChat Overview and Summary

The appeal before the Court concerns the sentencing of the appellant, who has a psychiatric disability and borderline intelligence, for multiple offences committed between 2015 and 2018. The appellant was sentenced in the Magistrates Court to imprisonment for one year, five months, and 15 days, with a non-parole period of 10 months. The appellant argues that the sentence was manifestly excessive due to alleged errors made by the Magistrate in sentencing. The Court was tasked with determining whether the Magistrate correctly assessed the relevant factors, particularly the nature and circumstances of the offender, and whether the sentence was appropriate under the circumstances.

The legal issues before the Court revolved around the interpretation of sentencing provisions and the appropriate weight to be given to the appellant's psychiatric condition and mental disorder in determining the sentence. The Court was required to assess whether the Magistrate erred in not sufficiently considering the appellant's psychiatric history, her response to treatment, and the impact of her mental disorder on her capacity to control her behaviour. Additionally, the Court had to determine if the sentence imposed was excessive in light of the appellant's mental health issues and her history of anger outbursts.

In reviewing the sentence, the Court noted that the Magistrate had before him conflicting psychiatric opinions regarding the appellant's mental state and diagnosis. While Dr. Lim disagreed with Dr. Jennings' diagnosis of Intermittent Explosive Disorder, both psychiatrists acknowledged the appellant's significant psychiatric illness. The Court found that the Magistrate gave insufficient weight to Dr. Jennings' opinion and the appellant's response to treatment, which was crucial in assessing her capacity to control her conduct. The Court concluded that the Magistrate failed to properly consider the appellant's mental disorder and its impact on her offending behaviour, leading to a sentence that was manifestly excessive.

The Court allowed the appeal, quashed the sentence, and remitted the matter to the Magistrates Court for resentencing. The Court emphasised the need for the Magistrate to properly consider the appellant's psychiatric history, her response to treatment, and the impact of her mental disorder on her offending behaviour when determining the appropriate sentence. The Court underscored the importance of a thorough and balanced approach to sentencing in cases involving offenders with significant mental health issues.

Orders

Orders of the court

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Background

Background to the litigation

The appellant, a person of borderline intelligence and with a psychiatric disability, was sentenced in the Magistrates Court to a term of imprisonment of one year, five months and 15 days with a non-parole period of 10 months for a number of offences committed between 2015 and 2018. The appellant appeals the sentence, contending that the Magistrate made a number of errors leading to the sentence being manifestly excessive.Background The matter has a complex background. At the time of sentence, the appellant was a single 32-year-old woman who was unemployed and receiving Newstart benefits. She had an extensive psychiatric history. A neuropsychological review found her IQ to be in the “extremely low average to borderline” range. Of importance is that the appellant, in May 2009, had been diagnosed by her treating psychiatrist, Dr Jennings, as suffering an Intermittent Explosive Disorder. Dr Jennings had been treating her since that time for that disorder. On the 18 March 2014, the appellant was sentenced, in relation to earlier offending, on two counts of assault and one count of threaten to cause harm. Dr Jennings provided an opinion that at the time of the offending the appellant was mentally incompetent to commit the offences. This diagnosis was accepted by the court at the time of sentencing and the appellant was released on licence pursuant to section 269NB of the Criminal Law Consolidation Act 1935 (SA). A condition of the licence was that she undergo treatment for her psychiatric condition. She did not breach her licence conditions. During 2016, the appellant ceased using her prescribed medication due to its side effects which caused drooling and pruritus. At this time she was in a relationship. The appellant missed a number of appointments with Dr Jennings but eventually consulted him in February 2017. At that time she told Dr Jennings that she was keen to restart the medication as she had noticed an increase in her anger outbursts. In October 2017, she consulted Dr Jennings and reported that she was suffering anger outbursts when provoked. It is against that background that the appellant committed a range of offences from July 2015 to August 2018. The delay in having the matters finalised related to a court-ordered Part 8A investigation into whether the appellant suffered a mental impairment such that she was totally unable to control the conduct alleged to give rise to the offending. During the course of the remand to obtain the report the appellant committed further offences. Counsel for the appellant sought to obtain a report from Dr Jennings. The appellant failed to attend the nominated appointment time. The Court ordered a report from a different psychiatrist, Dr Lim. Dr Lim reported on 20 January 2018 that she disagreed with the diagnosis of Dr Jennings that the appellant suffered from an Intermittent Explosive Disorder. She considered that the appellant suffered from an Antisocial Personality Disorder and also had borderline personality traits. Dr Lim considered that the appellant was not “completely unable” to control her behaviour pursuant to s 269C(1)(c) of the Criminal Law Consolidation Act 1935 (SA) and therefore did not support a “mental impairment” defence.

Evidence

Evidence Before The Court

On 22 August 2018, the appellant committed the offences of wilful damage and refuse name. She was refused a loan at Cash Wizard so became angry, picked up an Eftpos machine and threw it across the room, pushed a computer keyboard, mouse and printer off the counter and threw a television on the ground. The appellant refused to provide details to the police. The psychiatric evidence The Magistrate had before him the reports of the two psychiatrists, Dr Jennings and Dr Lim. These reports were obtained for the purpose of determining whether the appellant was totally unable to control her conduct such that she had a mental impairment defence. The appellant’s interview with Dr Lim was terminated early because the appellant lost her temper with Dr Lim and demanded she apologise for making her angry. When no apology was forthcoming the appellant threatened to assault Dr Lim. Dr Lim did not have the benefit of the report from Dr Jennings, which contained a detailed psychiatric history. It is unfortunate that Dr Lim was not asked to comment on the further history provided by Dr Jennings as to the appellant’s response to treatment, nor the explanation Dr Jennings gave, in response to Dr Lim’s report, as to why he maintained his diagnosis. At the time of writing her report, Dr Lim did not have the benefit of the up-to-date history taken by Dr Jennings and, in particular, the good response the appellant showed to his treatment of her psychiatric condition, however described. What is important however, is that both psychiatrists considered that the appellant had a significant psychiatric illness; they disagreed on the diagnosis. While Dr Lim disagreed with the diagnosis of an Intermittent Explosive Disorder, she considered that the appellant had an Antisocial Personality Disorder and borderline personality traits. Symptoms of a Borderline Personality Disorder include impulsivity, irritability and aggressiveness coupled with reckless disregard for the safety of herself or others and a lack of remorse. Dr Lim noted that individuals with an Antisocial Personality Disorder are prone to angry outbursts which are reinforced if they result in secondary gains. Dr Lim considered that the appellant also had borderline personality traits characterised by actual or threats of self-harm, a pattern of unstable interpersonal relationships and emotional dysregulation resulting in inappropriate intense anger or frequent displays of temper. Dr Lim was not asked, nor did she provide any opinion on, what, if any, treatment the appellant should undertake relating to her illness. The only evidence relating to past and future treatment that was before the Magistrate was the uncontradicted evidence of Dr Jennings. Whilst it was open to the Magistrate to accept Dr Lim’s diagnosis, Dr Jennings was treating the appellant and, whatever label could be attached to her illness, she appeared to respond to, at least to some extent, his management of her condition.The submissions before the Magistrate

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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