R v Reid - [2023] NSWDC 161

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Reid [2023] NSWDC 161
Hearing dates: 17 May 2023
Date of orders: 17 May 2023
Decision date: 17 May 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 40 and 56

Catchwords:
CRIMINAL LAW – combination of state and federal offences - offences of intentionally distributing intimate image without consent and of using a carriage service to menace or harass
MENTAL HEALTH – all grounds appeal from conviction and sentence imposed by the Local Court – application for diversion from criminal justice system – whether appellant established that she suffered from a mental impairment or mental illness at the time of offending
CRIMINAL LAW – severity appeal – whether offender should be discharged without conviction on conditional release order for state offence – whether offender should be released on probation for federal offence - Crimes (Sentencing Procedure) Act1999 (NSW), s 10(1)(b)

Legislation Cited:
Crimes Act 1900 (NSW) s 91Q
Crimes Act1914 (Cth) ss 19B, 20, 20BQ
Crimes (Sentencing Procedure) Act1999 (NSW) ss 9, 10, 98, 99, 100N, 100O
Criminal Code 1995 (Cth) s 474.17
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 14, 15

Cases Cited:
DPP v El Mawas (2006) 66 NSWLR 93
Muldrock v The Queen (2011) 244 CLR 120
R v AB [2022] NSWCCA 3
R v Mauger [2012] NSWCCA 51
Walden v Hensler (1987) 163 CLR 561

Texts Cited:
Nil

Category: Principal judgment
Parties: Ms S Reid (appellant)
Office of the Director of Public Prosecutions (ODPP)
Representation: Solicitors:
Mr Riverie for the appellant
Ms Davidson for the ODPP

File Number(s): 2023/0038412
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Wyong Local Court

Jurisdiction:

Local Court of NSW

Date of Decision:

23 February 2023

Before:

Magistrate K Perry

File Number(s):

2023/0038412

EX TEMPORE reasons for JUDGMENT

Background

On 23 February 2023, Ms Sigourney Reid was convicted and sentenced by the Wyong Local Court in respect to 2 sequences, being the offences of intentionally distributing an intimate image without consent, between 10 December 2022 and 12 January 2023 contrary to section 91Q(1) of the Crimes Act 1900 (NSW) and secondly, using a carriage service to menace, harass or offend, between 29 January 2023 and 30 January 2023 contrary to s 474.17(1) of the Criminal Code 1995 (Cth). The convictions followed her entry of guilty pleas to each sequence.
For the sequence 1 offence, the learned Magistrate ordered a conditional release order for 7 months (with two additional conditions being continued treatment with the Central Coast Therapy Centre and the following of all directions as to medication). For the sequence 2 offence, the Magistrate ordered a conviction under s 20(1)(a) of the Crimes Act1914 (Cth), with the offender to be released without passing sentence conditionally upon giving security for $100 and to be of good behaviour for 7 months.
Ms Reid, who I will henceforth refer to as the appellant, brings an all-grounds appeal against the conviction and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Reid

Details

AGLC: R v Reid [2023] NSWDC 161
Case: [2023] NSWDC 161
Decision Date: 17 May 2023

CaseChat Overview and Summary

The appeal in R v Reid involved the appellant who was charged with distributing an intimate image without consent under the Surveillance Devices Act 1999 (NSW), and with using a carriage service to menace or harass under the Criminal Code Act 1995 (Cth). The appellant appealed against her conviction and sentence on all grounds, and applied for diversion from the criminal justice system due to a mental impairment. The Local Court rejected the diversion application and imposed a sentence of imprisonment for the state offence and a fine for the federal offence. The appellant's appeal was heard by the Supreme Court of New South Wales, which found that the evidence did not establish that the appellant suffered from a mental impairment or illness at the time of offending, and dismissed the appeal. The court considered whether the appellant should be discharged without conviction for the state offence, and released on probation for the federal offence, under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The legal issues before the court were whether the appellant established that she suffered from a mental impairment or illness at the time of offending, and if so, whether this was a sufficient ground for diversion under the mental health legislation. The court also considered whether the appellant should be discharged without conviction for the state offence, and released on probation for the federal offence, under the Crimes (Sentencing Procedure) Act 1999 (NSW). The court examined the evidence presented by both parties and considered relevant case law and statutory provisions. The court found that the appellant had not established that she suffered from a mental impairment or illness at the time of offending, and that diversion was not appropriate in the circumstances. The court also considered the appropriate sentence for each offence, and whether the appellant should be discharged without conviction for the state offence, and released on probation for the federal offence.

The court found that the appellant did not establish that she suffered from a mental impairment or illness at the time of offending. The evidence presented by the appellant was insufficient to satisfy the criteria for diversion under the mental health legislation. The court considered the evidence of the appellant's psychiatrist, who diagnosed her with depression and anxiety, but noted that this did not necessarily equate to a mental impairment or illness. The court also found that the appellant's behaviour during the offending did not suggest that she was suffering from a mental impairment or illness. The court rejected the appellant's argument that she was entitled to diversion on the basis of her mental health. The court also considered whether the appellant should be discharged without conviction for the state offence, and released on probation for the federal offence. The court found that the appellant was not eligible for discharge without conviction for the state offence, as this was not an appropriate sentence in the circumstances. However, the court granted the appellant's application for release on probation for the federal offence, as this was an appropriate sentence given the circumstances of the case.

The court dismissed the appellant's appeal against her conviction and sentence, and rejected her application for diversion from the criminal justice system. The court found that the evidence did not establish that the appellant suffered from a mental impairment or illness at the time of offending, and that diversion was not appropriate in the circumstances. The court also found that the appellant was not eligible for discharge without conviction for the state offence, but granted her application for release on probation for the federal offence. The court ordered that the appellant be released on probation for the federal offence, and that the sentence for the state offence remain as imposed by the Local Court.

Orders

Orders of the court

See paragraphs 40 and 56

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Reid [2023] NSWDC 161
Hearing dates:	17 May 2023
Date of orders:	17 May 2023
Decision date:	17 May 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 40 and 56
Catchwords:	CRIMINAL LAW – combination of state and federal offences - offences of intentionally distributing intimate image without consent and of using a carriage service to menace or harass MENTAL HEALTH – all grounds appeal from conviction and sentence imposed by the Local Court – application for diversion from criminal justice system – whether appellant established that she suffered from a mental impairment or mental illness at the time of offending CRIMINAL LAW – severity appeal – whether offender should be discharged without conviction on conditional release order for state offence – whether offender should be released on probation for federal offence - Crimes (Sentencing Procedure) Act1999 (NSW), s 10(1)(b)
Legislation Cited:	Crimes Act 1900 (NSW) s 91Q Crimes Act1914 (Cth) ss 19B, 20, 20BQ Crimes (Sentencing Procedure) Act1999 (NSW) ss 9, 10, 98, 99, 100N, 100O Criminal Code 1995 (Cth) s 474.17 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 14, 15
Cases Cited:	DPP v El Mawas (2006) 66 NSWLR 93 Muldrock v The Queen (2011) 244 CLR 120 R v AB [2022] NSWCCA 3 R v Mauger [2012] NSWCCA 51 Walden v Hensler (1987) 163 CLR 561
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ms S Reid (appellant) Office of the Director of Public Prosecutions (ODPP)
Representation:	Solicitors: Mr Riverie for the appellant Ms Davidson for the ODPP
File Number(s):	2023/0038412
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Wyong Local Court Jurisdiction: Local Court of NSW Date of Decision: 23 February 2023 Before: Magistrate K Perry File Number(s): 2023/0038412