R v Barolia (No. 4)

[2021] NSWDC 777

District Court

New South Wales

Medium Neutral Citation:

R v Barolia (No. 4) [2021] NSWDC 777

Hearing dates:

3 December 2021

Date of orders:

3 December 2021

Decision date:

03 December 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

1. I order that Muntaj Bagam Barolia be released on condition that she appear before the Mental Health Review Tribunal as a forensic patient, pursuant to s 73(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, to enable that Tribunal to consider imposing conditions under s 85 of that Act;

2. I direct the Registrar to advise the Mental Health Review Tribunal forthwith of this order, and I direct that the Registrar provide to that Tribunal copies of exhibits K and L.

Catchwords:

Final orders after a special verdict under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 after receipt of report from Forensic Mental Health Network.

Legislation Cited:

Crimes Act 1900 (NSW)

Mental Health and Cognitive Impairment ForensicProvisions Act 2020 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina – Crown
Defendant – Muntaj Bagam Barolia

Representation:

Crown
Waldmann
Defendant
Kent

File Number(s):

2019/00382466

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Mrs Muntaj Bagam Barolia was charged on indictment that on 4 December 2019 at Illawong in this State she did recklessly wound Moshin Barolia, an offence contrary to s 35(4) of the Crimes Act 1900. After conducting a hearing by judge alone, I returned a special verdict of act proven but not criminally responsible.

2. After making that finding, and hearing from counsel, I made an order pursuant to s 33(2) of the Mental Health and Cognitive Impairment ForensicProvisions Act 2020 that the Forensic Mental Health Network prepare a report as to the condition of the former accused and whether her release was likely to endanger her safety, or that of any other person. Such a report has been prepared, and bears the date 2 December 2021, and has become Exhibit L. There is also before me a report from the former accused’s treating psychiatrist Dr Deepa Malik, bearing date 17 October 2021.

3. In short it appears to me to be common ground that provided that Mrs Barolia maintains her current medical treatment that she will offer no risk either to herself, or to her son, or to any member of the public. Exhibit L contains this statement:

“Based on her current presentation, the risk to her son does appear low. If she were to return to residing with her son, she would require a close level of monitoring in the initial transition period, as well as regular engagement in her treating team in order to monitor and manage her stress level. If concerns regarding her mental state are raised, this should trigger a prompt psychiatric review and a serious consideration of an in-patient placement for stabilisation and management of violence risk.”

The report then places two restrictions upon Mrs Barolia. They are that she should maintain compliance with all conditions of a proposed forensic order, and that she should remain abstinent from all non-prescribed substances.

4. In the circumstances it appears that Mrs Barolia should be released conditionally such that she becomes a forensic patient, and for that purpose it is appropriate that I release her on condition that she appear before the Mental Health Review Tribunal as soon as possible for it to consider what conditions to impose upon her.

5. For those reasons I make this order: I order that Muntaj Bagam Barolia be released on condition that she appear before the Mental Health Review Tribunal as a forensic patient, pursuant to s 73(1)(c) of the Mental Healthand Cognitive Impairment Forensic Provisions Act 2020, to enable that Tribunal to consider imposing conditions under s 85 of that Act.

6. Any other orders sought?

KENT: Your Honour, just for the avoidance of doubt would your Honour enter an order discharging her just to ensure there’s no bail which would--

HIS HONOUR: Well no, I went though this Act to make sure that the orders I am making complied with the terminology of the Act. Under s 33 it says:

“On return of a special verdict of act proven but not criminally responsible the Court may make one or more of the following orders:

(a) an order that the defendant be remand in custody until further order is made under this section,

(b) an order the defendant be detained in the place and manner that the court thinks fit until released by due process of law,

(c) an order for the unconditional or conditional release of the defendant from custody,

(d) other orders that the Court thinks appropriate.”

You will see in a note at the end of the section:

“A person for whom a special verdict of fact proven but not criminally responsible is entered is a forensic patient unless unconditionally released, and is to be dealt with under part 5.”

So what I have ordered is her release on condition that she appear before the Tribunal for the Tribunal to make the appropriate orders.

KENT: Yes, thank you, your Honour. I just wanted to be certain that there was no bail which would continue.

HIS HONOUR: No, because bail is pending either trial or imposition of “sentence”, but here it is the appropriate order, I have made the final order of the Court process which now has to go to the Mental Health Review Tribunal.

KENT: Thank you, your Honour.

7. HIS HONOUR: I am going to make another order. I direct the Registrar to advise the Mental Health Review Tribunal forthwith of this order, and I direct that the Registrar provide to that Tribunal copies of exhibits K and L.

8. Now clearly the authors of exhibit L had available to them all the earlier medical evidence and once that gets into the Tribunal hands they will have access.

KENT: Thank you, your Honour.

HIS HONOUR: All right, any other orders?

WALDMANN: No, thank you.

Decision last updated: 04 April 2022