R v Aidoo

[2022] NSWDC 114

District Court

New South Wales

Medium Neutral Citation:

R v Aidoo [2022] NSWDC 114

Hearing dates:

12 April 2022

Date of orders:

12 April 2022

Decision date:

12 April 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 46

Catchwords:

MENTAL HEALTH – all grounds appeal from Local Court conviction and sentence of the appellant – appellant pleaded guilty to two offences – appellant had mental illness at date of offending – application to divert from criminal law process – alternative appeal against severity of sentence of community corrections order following pleas of guilty

Legislation Cited:

Crimes Act 1900 (NSW) ss 33B, 94

Mental Health and Cognitive Impairment Provisions Act 2020 (NSW) s 4

Mental Health (Criminal Procedure) Act 1990 (NSW) ss 32, 33

Cases Cited:

DPP v El Mawas (2006) 66 NSWLR 93

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Office of the Director of Public Prosecutions
Mr Aidoo (appellant)

Representation:

Solicitors:
Ms R Sharma for the ODPP
Ms C Cotton for the appellant

File Number(s):

2021/00013095

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Downing Centre Local Court

Jurisdiction:

Criminal

Date of Decision:

16 December 2021

Before:

Magistrate Swain

File Number(s):

2021/00013095

REASONS FOR JUDGMENT

1. On 16 December 2021, following pleas of guilty, the appellant was convicted and sentenced in the Downing Centre Local Court of the offences that between 6:25am and 6:46am on 15 January 2021 at Surry Hills, he:

1. used an offensive weapon with the intent to commit an indictable offence of intimidation, contrary to s 33B(1) of the Crimes Act 1900 (NSW) (‘Crimes Act’); and

2. stole from Sujan Balami, contrary to s 94(b) of the Crimes Act.

2. The maximum penalty for the former offence was 14 years imprisonment when tried on indictment or where, as here, tried summarily, 2 years’ imprisonment. The maximum penalty for the latter offence, when tried on indictment, was 12 years’ imprisonment or, when tried summarily, 2 years’ imprisonment. He received an aggregate sentence of a community corrections order for a period of 30 months. Additional conditions featured his participation in any program specified by a community corrections order and rehabilitation.

3. On or about 24 January 2022 he lodged a severity appeal. Then, by notice of motion filed on 28 March 2022 he filed a notice of motion seeking leave to amend the notice of appeal so as to transform it to an ‘all grounds’ appeal. As it was identified in the affidavit in support of the motion, the purpose of the application was to enliven this Court’s jurisdiction to divert the appellant into the mental health division, under the Mental Health (Criminal Procedure) Act 1990 (NSW). Earlier today, and with the Crown’s consent, the appellant was granted leave to amend.

CIRCUMSTANCES OF OFFENDING

4. Before the Local Court, the appellant agreed to a set of facts, which had been signed by the appellant’s legal representative, and by a solicitor of the ODPP.

5. On 14 January 2021 at 6:30pm, a resident of premises in Clisdell Street, Surry Hills heard a lot of ranting about God and Jesus coming from outside below his window. The resident put his head out the window and saw two males, one of whom was the appellant. The other was trying to quiet the appellant.

6. At about 6:25am on 15 January 2021, a facility manager for Opera Australia was at a loading dock of their Surry Hills premises. He saw (and heard) the offender yelling loudly on the opposite site of the road, without making any sense. This manager formed a view that the appellant was mentally ‘unsteady’. The appellant had walked into the loading dock, holding a glass bottle and the manager restrained him. The appellant left the premises.

7. Earlier that morning, at about 5:30am, a victim, Mr Sujan Balami, went to his workplace, as a cleaner of the Belvoir Street theatre. He took a break at about 7am, sitting on a fence, smoking and listening to music through one ear pod whilst playing with his iPhone. Just after he sat down, the victim saw the appellant walking towards him. The appellant asked the victim if he had a ‘ciggie’ and the cleaner said he did not.

The offensive weapon offence

8. The appellant then brought his right hand up, holding a clear bottle by the neck. He held the bottle in such way that the victim perceived that the appellant was going to hit him. That apprehension was facilitated further by the appellant telling him, loudly, that he was a “sin to this world” and using other swear words.

9. The appellant swung the bottle twice, from side to side, towards the victim’s face; but the victim avoided the bottle. The appellant then told the victim to stand up; and the latter did. The appellant stood, face to face, in front of the victim. He then said to the victim “put your hands up” and the victim did. The appellant then coerced the victim into reciting, after the appellant, professions of love of God.

The stealing offence

10. The appellant lowered his bottle. The appellant said to the victim “Give me all your stuff”. The victim handed the appellant his iPhone, and his one ear pod in its case. In doing so, the victim’s work key and lighter fell to the ground. The victim handed these to the appellant as well. The appellant then told the victim to ‘go’.

Aftermath

11. After this ordeal, the victim crossed the road and, after ensuring he could no longer see the appellant, saw a woman in a parked car and asked for her help. This the woman did. The police were rung.

12. Police arrived at 6:50am and the victim gave them a description of the appellant. Police arrested him and the appellant was taken to hospital. The arrest was difficult: the appellant was tazered to his chest and tackled. He presented to the Emergency Department at St Vincent’s Hospital. There the appellant made numerous incoherent comments, including the statement that the “devil (is) inside me bring him out. He will get you.” He was sedated by hospital staff.

13. The victim later had police return to him his iPhone, air pod (and case), work key and fob.

Aggravating factor

14. The aforementioned offending occurred whilst the appellant was subject to an earlier community corrections order for a period of a year, due to expire on 6 February 2021, for the offence of common assault.

Other facts and circumstances leading up to the offending

15. Beyond the agreed facts, the appellant relied upon records of his interactions with police on the day before the offending, being 14 January 2021, which were summarised in a chronology prepared by his solicitor. As early as 7:30am on 14 January, the appellant was reputed to have been yelling and shouting and causing fear and alarm amongst community members. Through the day and into the late evening, he was acting erratically. By 11:40pm, he was arrested for stealing an ice coffee from a shop in Elizabeth Street, Surry Hills and 10 minutes later, police received reports of his harassing staff and customers at the Little Darling. He was arrested again for failing to comply with a ‘move-on’ direction

THE APPELLANT’S SUBJECTIVE CIRCUMSTANCES

16. The appellant was over 41 years of age at the date of this offending. He was born in and became a refugee from Ghana and lived with his partner. He came from a large family. His official address was public housing in Surry Hills. He had five children from a previous relationship and had been in support of a disability support pension over the last few years. He was an app and computer programmer with 20 years’ experience.

17. He had little criminal history prior to the offending: there were two offences in September 2002 that had nothing to do with any violent behaviour. In December 2005 he committed an offence of assaulting an officer in the execution of duty. That charge was dismissed. Then in July 2006, he was convicted of common assault. These were stale offences by the time he committed the offence of common assault in 2019, which resulted in the imposition of the community corrections order that was breached by his offending conduct the subject of this proceeding. However, as the Crown observed in its verbal submissions, the fact of a limited criminal history does not take into account the instances where the appellant has previously been dealt with under s 32 of the legislation.

Some chronology

18. In the Local Court and in this Court, the appellant relied upon a detailed chronology prepared by his solicitor. The chronology related to events between 2 April 2020 and 16 December 2021. On 2 April 2020, the Mental Health Review Tribunal made a treatment order requiring the appellant to receive treatment from the Inner City Mental Health Service Caritas Centre.

19. On 21 April 2021, after the subject offending, the appellant made a bail application to the Supreme Court. He had apparently been charged with offences of robbery and assaulting a police officer. In support of his bail application, he relied upon letters from his partner, Ms Cherie Hanrahan and her mother, Joy. Cherie Hanrahan offered her home in Rockley, being a small village 35km away from Bathurst, as a place where the appellant could reside. Joy Hanrahan offered surety.

The psychiatrists’ reports

20. Before the Local Court, the appellant relied upon a letter of referral to the Prince of Wales Inpatient Rehabilitation Unit from a consultant psychiatrist, Dr Sarah Michael, dated 14 December 2020; and a report of the forensic psychiatrist, Dr Furst, dated 15 December 2021.

21. Dr Michael had been familiar with the appellant’s case since 2007. In December 2020, about a month before the subject offending, she referred the appellant due to a perception of a deterioration of his bipolar disorder in the last 12 months. That had occurred through a breakdown of the relationship with his long-term partner and mother of his 7 children. That breakdown had the consequence of separation from his children.

22. Dr Michael had noted that since about 2013, he had had recurrent manic episodes, albeit interspersed between periods of ‘wellness’.

23. Dr Furst assessed the appellant, via FaceTime AVL for over an hour, with the support of his partner, Cherie. Amongst other things, he took into account the content of mobile telephone calls the appellant made to police on 11 January 2021, medical records from Justice Health and from the Bathurst Community Mental Health Service.

24. Dr Furst recorded that the appellant had had no mental health problems until December 2005 when struck in the face by a bouncer at a night club in Oxford Street. A metal plate, or plates, was or were inserted in January 2006. He did not forgive the night club and he resented his treatment by police.

25. Over the next 15 years, he had been admitted to several psychiatric inpatient units in Sydney. Typically, he displayed mania, evinced by his acting in a disinhibited manner and reflected in his going without sleep, fast talk and speaking in grandiose terms. When he approaches strangers and acts in this state, and after strangers call the police, he typically becomes scared of police when they approach him. He has also been prescribed various psychotropic medications over the years, including antipsychotic medications.

26. Dr Furst recorded that the appellant was admitted to the psychiatric inpatient unit at St George Hospital, under s 33 of the Mental Health (Criminal Procedure) Act 1990 (NSW), on 12 July 2020 and 17 July 2020, in connection with resisting arrest and assaulting a police officer. He had reportedly expressed violent thoughts in a context of stopping his medication. He had previously been diagnosed with a schizoaffective disorder. Dr Furst reviewed the Justice Health Medical Records and the Bathurst Community Mental Health Service records. As to the former, the day after the events the subject of this appeal, he presented to a mental health nurse as being manic and thought disordered, with religious themes and high levels of anxiety. On 17 January 2021, DCS NSW officers noted that he was screaming and agitated. A mental health nurse saw him the next day when his symptoms were regarded as being consistent with acute mania and psychosis.

27. Dr Furst opined that the appellant met the criteria of schizoaffective disorder and a bipolar affective disorder. He observed that both of these conditions were mental health impairments within the meaning of s 4 of the currently applicable Mental Health and Cognitive Impairment Provisions Act 2020 (NSW). He also opined that he was a mentally ill person at the time of the subject offences. Dr Furst further believed that he should be discharged on condition of being placed under the care of the Darlinghurst and/or Bathurst Community Mental Health Services, subject to his compliance with the conditions of a treatment plan, whose details he spelt out. However, he did not regard the appellant as being currently a mentally ill person, as at the date of the report.

Ms Byrnes’ letters

28. Demi Byrnes is a registered nurse with the Bathurst Community Mental Health team. She has prepared certain letters to the Local Court and this Court, dated 15 December 2021 and 24 March 2022. That team had been managing his mental health care.

29. In the former letter, she noted that the appellant had been compliant with his medications and attending appointments as required. In the latter letter, Nurse Byrne indicated that the appellant had seen Dr Maguire, his regular psychiatrist on 16 March 2022. The appellant continued to be case managed by Nurse Byrne and complied with his treatment requirements. Nurse Byrne also reported the plan of the mental health team to help the appellant access and utilise his provided NDIS package and increasing his connection to the community.

ISSUES ON THIS APPEAL

30. The issues for the Court’s determination are:

1. whether the appellant should be diverted, pursuant to the provisions of s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) (the Act)?

2. if not, should the current penalty of a community corrections order be set aside or varied

Should the appellant be diverted?

31. At the date of the offending s 32 of the Act relevantly provided:

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is…

(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a hospital,

but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of the Part than otherwise in accordance with law, the magistrate may take the action set out in subsection (2) or (3)

………………………

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or

(c) unconditionally.

32. The Crown concedes that the appellant suffers from mental illness or suffers from a mental condition for which treatment is available in a hospital, but was not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990 (NSW). That is, the Crown concedes the first limb of the test for s 32. In my view, the concession was properly made. I accept Dr Furst’s opinion that the appellant suffers from both schizoaffective disorder and bipolar affective disorder.

33. The next question is whether it would be more appropriate to deal with the appellant in accordance with the provisions of this Part of the Act than otherwise in accordance with the (criminal) law. The Crown was neutral on this question. Put another way, it did not submit that it would not be more appropriate to deal with the appellant under the Act rather than through the criminal law.

34. In DPP v El Mawas (2006) 66 NSWLR 93, the Court of Appeal clarified that the diversionary regime under the Act was appropriate to even serious offenders so long as it could be regarded as more appropriate in the alternative. The Crown identified, as relevant considerations to this evaluative assessment, the seriousness of the circumstances of the offending, the public interest in punishment of the offender, the offender’s criminal history, the extent of a treatment plan, the limited period for enforceable orders and sentencing options available under the criminal law.

35. The legal representative for the appellant acknowledged the seriousness of the offending, and acknowledged the difficulty occasioned to the Court that the appellant had entered a plea following negotiations with the prosecutor. Nevertheless, there was clear evidence of the effect of the appellant’s mental illnesses manifesting themselves before, during and proximately after the subject offending.

36. It was common ground that the appellant’s mental illness had been more or less capably managed up to about 2019. This was when he experienced a marital breakdown and the consequential separation from his many children. The appellant’s legal representative also demonstrated that Police and Justice Health generally were well attuned to the appellant’s mental illnesses before the instant offending.

37. The principal point of the legal representative for the appellant was that for a period leading up to the offending, and flowing from the distress occasioned by his marital situation and separation from his children, the appellant went off the rails and that there were multiple missed opportunities to have him detained and treated.

38. The appellant’s next point, borne out in the Justice Health Records summarised by Dr Furst, is that in 2021, his condition had improved since the initial admission into St Vincent’s. So much so that by 17 February 2021, it was opined that he had responded well to the antipsychotic and mood-stabilising medications he had been given in custody throughout January and February. A note from Justice Health of that date recorded that he was stable on his medications, exhibited ‘nil psychotic’ features and presented ‘nil acute risks’. Since his release from custody in April 2021, on conditional bail, he had continued improvement, with the support of his present partner (who attended Court in support of the appellant today). The treatment plan he was receiving was working.

39. His legal representative accepted that whilst there remained at least some residual risk, in the sense of the lingering stress trigger of a marital breakdown and separation from children, that risk had been proven to have been adequately managed, now nearly a year since his release from custody.

40. The appellant submitted that it would be appropriate to divert him for continuing treatment, in accordance with Dr Furst’s recommendations, as set out in the latter’s report.

41. As indicated, the Crown took a neutral position on the application. In particular, it took no issue with the adequacy of Dr Furst’s treatment plan. Ms Crown did not disagree with the appellant’s contentions.

42. In my view, it is appropriate to divert the offender. Although the Crown pointed to earlier instances where he had been diverted, both of those instances occurred (in September and December 2020) when it not apparent what was the treatment plan or other conditions that were attached. Plainly they were ineffective. Although there is always risk and a predictive aspect to these applications, the Crown did not suggest that what Dr Furst proposed was inadequate.

43. I am mindful of the seriousness of the offending. In particular, it must have been traumatic for the victim. But the appellant has a limited criminal history, indicating a demonstrable capacity throughout most of his adult life to have his mental illnesses managed. He has the clear support of a present partner. His recent conduct, since the offending, has shown a willingness and ability to receive his treatment. The Court has received positive indications, in particular, from Bathurst Health about the supervision that it can administer. In circumstances where, in my view, his offending conduct was clearly affected by his mental illnesses, it is not appropriate for him to bear the stigmatic effect of criminal punishment, particularly where, as was demonstrated, it was at least arguable that the offending could have been prevented if authorities had acted upon signals that had occurred: it was not the case that the appellant was wholly unknown to authorities. Further, although the program imposed as additional conditions to the CCO might resemble the treatment he would receive at Bathurst Health, he would benefit from more tailored and closer attention to that health service.

32. I am accordingly satisfied that the second limb of the test is satisfied, and that it is more appropriate to deal with the appellant in accordance with the provisions of the relevant Part of the Act than otherwise in accordance with law.

33. This conclusion obviates the need to consider the adequacy of the penalty of the Community Corrections Order imposed by the Local Court.

34. Subject to hearing further from the Crown and the legal representative as to consequential orders flowing from these reasons, I propose the following:

1. the convictions against the appellant entered on 16 December 2021 be set aside, the two charges dismissed and the appellant be discharged, in accordance with order 3.

2. the sentence imposed by the Local Court on 16 December 2021 be set aside.

3. the appellant is discharged on condition that he attend on the Bathurst Community Mental Health Service for assessment, treatment and the provision of appropriate support for the appellant’s mental illness, subject to his compliance with:

1. he attends appointments with his case manager, Demi Byrne, or delegate, at a frequency as clinically indicated, probably monthly in the first instance

2. he remains under the care of Dr Kim Maguire, psychiatrist, or delegate, and attends appointments at a frequency as clinically indicated, probably monthly in the first instance

3. he accepts psychotropic medication, as prescribed, currently:

1. Invega Sustena (Paliperidone Palmitate) 75mg Intramuscular deport injection monthly

2. Olanzapine 10mg orally at night

3. Lithium 900mg orally twice daily

4. he accepts counselling or therapeutic interventions, as clinically indicated, options including seeing a clinical psychologist in relation to the difficulties he has experienced being separated from his children, pain management, and drug and alcohol counselling with a focus on relapse prevention if his cannabis use escalates

1. he follows recommendations as to his diet, including that he adopts a mostly Mediterranean diet, a diversity of foods containing probiotics, eating fish rich in omega 3 fatty acids (fish oils) and avoids excessive drinking for the purposes of mood stabilisation.

47. No objection was made by the Crown (or the appellant’s legal representative) to those proposed orders. Those orders are accordingly made.

**********

Decision last updated: 14 April 2022