Squires v The The Queen

[2022] NSWDC 147

District Court

New South Wales

Medium Neutral Citation:

Squires v R [2022] NSWDC 147

Hearing dates:

11 February 2022

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See par [40].

Catchwords:

CRIME – APPEAL – Applicant convicted in the Local Court of an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 – Offence committed below the mid-range of objective seriousness - Order sought pursuant to s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) – Applicant suffered from Bi-polar disorder at the time offences committed – Mental health treatment plan provided by the Applicant – Case not suitable for specific or general deterrence.

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Sentence

Parties:

R – Crown
Applicant – Michael James Squires

Representation:

Crown- Alderton
Applicant - Makin

File Number(s):

2020/00268181

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

16 April 2021

Before:

Huntsman LCM

File Number(s):

2020/00268024-001

Judgment

Background

1. HIS HONOUR: On 16 April 2021 His Honour Magistrate Huntsman, sitting in the Local Court at Waverley, convicted Michael James Squires (“the Applicant”) of an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The formal charge was that between 7.00pm and 7.05pm on 24 June 2020 at North Bondi, the Applicant did intimidate Noa Kolni with the intention of causing her to fear physical or mental harm (“the offence”). The maximum penalty for that offence which could be imposed in the Local Court was imprisonment for two years and/or a fine of $5,500. The same maximum penalty applies if dealt with in this Court.

2. On 14 May 2021 the Applicant filed a notice of appeal which was an appeal against both his conviction, the severity of the penalty imposed, and a desire to contest the making of an apprehended violence order. Ultimately, the Applicant makes an application under s 32 of the Mental Health (Forensic Provisions) Act 1990, which still applies to the offence. The court attendance notice for the offence was issued on 15 September 2020, prior to the coming into force of the current legislation governing mental health forensic provisions.

3. At the time of the offence the Applicant was 44 years old. The complainant and victim of the offence, Ms Noa Kolni (“the Victim”), was then aged 21. She is the Applicant’s step-daughter. As I understand it, she is the daughter of the Applicant’s wife by an earlier relationship. The Applicant has had three children of his own. All told, there were living in his home at North Bondi six people: he, his wife, the Victim, and the three children of his marriage to the Victim’s mother.

4. There was no allegation of assault. The only allegation was of intimidation. There was a disagreement between the Victim and the Applicant when the Applicant came home from work as to whether the Applicant’s eight-year-old son should be given further food after he had already consumed his evening meal. The Victim suggested that he did not need further food and that perhaps he needed a further glass of water. The Applicant said that he thought his son was a growing boy and needed further food, which he fetched for his son.

5. The allegation was that, as the Applicant was bringing further food to the table nearby the kitchen to provide to his son, the Applicant barged into, or knocked aside, the Victim. The Applicant’s position was that, rather than his moving towards the Victim, the Victim moved towards him. In any event there was displeasure voiced by the Applicant towards the Victim about the interaction, and clearly the Applicant was annoyed about words used by the Victim towards him which he believed were insulting and demeaning. The language that the Applicant used was recorded surreptitiously by the Victim, but there was no objection to that evidence being played in the Local Court. Clearly what the Applicant said was demeaning towards the Victim. It appears to be common ground that the Applicant made noises to suggest his punching a bag, suggesting that is what he would like to do to the victim (that is, noises being caused by the Applicant punching his hand into his arm).

6. As set out in His Honour’s reasons, the Applicant conceded in his oral evidence in the Local Court that the Victim may have been intimidated. On p 55 of the transcript of 16 April 2021, commencing at line 39, the Magistrate said this:

“He was asked several times whether a person would feel intimidated when - ‘if you said to a person, I’m picturing you as a punching bag. I’m going to bang, fucking, bang’, and punching the fist into the palm. It was put to him that ‘if you said that to someone, they would find it intimidating’, and he avoided that question several times over, but then, finally, said, ‘Potentially, yes’, and he was also asked about his description in the record of interview of ‘going overboard’, on 24 June and being a cave man and he said - he said he used those words... because he was deeply hurt and in terms of punching the fist into the right hand, while saying things in the recording, this was around questions 288, 289 of the record of interview, that that was just demonstrating and he was just imagining it.”

7. At no time in the Local Court did the solicitor appearing for the Applicant make any application under s 32 of the Mental Health (Forensic Provisions) Act 1990. That was discussed with the Applicant prior to the hearing in the Local Court, but the Applicant wanted to defend the matter on its merits because he believed on the evidence that he would give, and the concessions that he hoped to be made by the Victim, that he would be found not guilty of the alleged offence. However, after the finding of guilt, there was an opportunity for the solicitor acting for the Applicant to make an application under s 32, but he did not.

8. The Applicant gave evidence before me today, which I accept, that he was not advised by his then solicitor that he could make such an application prior to sentence being passed, and he said that, if he had been told, that he would have instructed his solicitor to make such an application. In those circumstances, I accept that it is appropriate for me to consider dealing with this matter under s 32.

Application of s 32 of the Mental Health (Forensic Provisions) Act 1990

9. I may make orders under s 32 diverting the Applicant out of the criminal justice system if I am satisfied that the Applicant was suffering from a mental illness at the time of the offence alleged, and that it would be more appropriate to deal with the defendant in accordance with the provisions of that Act rather than according to law.

10. The medical evidence before me is not in a completely satisfactory state, but it does enable me to make certain findings. A prior general practitioner of the applicant was Dr Claudia Nicholson. On 13 January 2020, that is some six months prior to the offence in question, the Applicant consulted Dr Nicholson who prepared a GP mental health treatment plan, Dr Nicholson being a medical practitioner who had undertaken mental health skills training. The evidence before me suggests that there were a number of subsequent consultations with Dr Nicholson, but some of them do not tell me what the nature of the consultation was, whether it was, for example, a mental health issue, or a medical issue, or a surgical issue. However, on 23 January 2020 there was an attendance for general practitioner mental health treatment, and on 12 March 2020 a review of a general practitioner mental health treatment plan.

11. On 9 June 2020 records show that there was a phone attendance by Dr Nicholson in relation to a mental health disorder, and that that consultation was at least 20 minutes in duration. There were unspecified consultations on 18 June 2020 and on 30 July 2020, that is, on either side of the offence committed on 24 June 2020.

12. The records available to me show that on 31 August 2020 there was an attendance upon Dr Nicholson for mental health treatment, and also on 5 November 2020 a review of a general practitioner’s mental health treatment plan. It can accordingly be seen that some at least five months prior to the crime committed by the Applicant that he had a mental health treatment plan prepared by his then treating general practitioner.

13. The Applicant was also referred to Mr David Marishel, a clinical psychologist. The records tell me that he saw the Applicant on 5 February 2020, 12 February 2020, 19 February 2020, 27 February 2020, 4 March 2020, 11 March 2020, 18 March 2020, and then again on 12 August 2020, after the offence committed by the Applicant, and then on 2 September 2020. Then, there were further consultations with him commencing in October 2021.

14. The appellant commenced to see Dr Jennifer Robins, a new general practitioner, on or about 30 September 2021. Exhibit 3 contains a referral letter from Dr Robins to Mr Marishel, and Dr Robins’ mental health treatment plan, dated 30 December 2021, and a certificate from Mr Marishel of 28 October 2021. That records that the Applicant had consulted Mr Marishel in 2020 and that Mr Marishel sought that the Applicant be referred to a psychiatrist. That psychiatrist was Dr Nathan Fleisch.

15. I know that the Applicant commenced seeing Dr Fleisch on 3 September 2020, and saw him on eight occasions in 2020 between 3 September 2020 and Christmas Eve 2020. Although the offence found by the Local Court occurred on 24 June 2020, no complaint about it was made to the police until 8 September 2020, that is, it was not reported to the police until after the Applicant had commenced seeing Dr Fleisch.

16. The referral letter of Dr Robins to Mr Marishel of 30 September 2020, or perhaps I ought to have said the second, the re-referral letter of Dr Robins to Mr Marishel, arranging for him to undertake further treatment of the Applicant in late 2021 mistakenly states that the Applicant started seeing Dr Fleisch again in October 2020, but we do know it was in fact September 2020. According to Dr Robins’ letter of 30 September 2021, the reason that Mr Marishel recommended a referral to a psychiatrist was that the psychologist, Mr Marishel, did not feel comfortable managing his patient when he thought the patient was suffering from a bi-polar disorder. It would appear that Dr Fleisch confirmed the diagnosis of a bi-polar disorder.

17. In her letter of 30 September 2021, Dr Robins recorded that the Applicant was enjoying his consultations with Dr Fleisch. By 30 September 2021 he was seeing Dr Fleisch on a monthly basis. Dr Fleisch had diagnosed Lamotrigine 50 milligrams to be taken each morning. He had also prescribed Olanzapine, an anti-psychotic medication, but that was not tolerated well by the Applicant who had stopped taking it. The letter of Dr Robins clearly refers to the Applicant’s having manic episodes and occasional episodes of low mood, but those episodes had become less frequent since treatment with the medicine prescribed by Dr Fleisch. Dr Robins also recorded that there was an anxiety component present when the Applicant presented to her in the mornings.

18. The “presenting problem” which caused Dr Robins to send the Applicant back to Mr Marishel was “bi-polar [disorder] and life stressors”. Her letter records these life stressors:

“Breakdown at work in January [2020], recent failed return to work plan.

Going through divorce, very acrimonious.

Two colleagues committed suicide.

Legal costs.

Close family deaths.”

19. It would appear that from Exhibit 1 in the Local Court, a narrative of the report by the Victim to police that was made on 8 September 2020, that the Applicant and his wife (and consequently, the children) had become estranged after 24 June 2020 and prior to 8 September 2020. Exhibit 1 in the Local Court contains this:

“POI [the Applicant] had a mental health breakdown in March 2020 and appears to suffer from bi-polar disorder from the description of his up and down behaviour from both the victim and other family members... Victim has fears as his behaviour is becoming more volatile with the decline in his mental health. Victim and family are no longer residing at the same address as the POI due to these fears and there is already an AVO taken out with the POI as the defendant for a separate matter that brought light to this one... Police believe that the POI’s behaviour is becoming more erratic as his mental health declines and without help he may harm someone without understanding that he has.”

20. It can be seen therefore that the Victim told the police and other members of the Applicant’s close family that there were concerns about his declining mental health, and that a police officer was able to discern bi-polar disorder in the Applicant without knowing that was the suspected diagnosis from Mr Marishel. This was the diagnosis accepted by Dr Fleisch, when he first consulted the Applicant on 3 September 2020.

21. Accordingly I have no hesitation in finding that as at 24 June 2020 the Applicant had mental health problems diagnosed ultimately as a bi-polar disorder, which was affecting his behaviour and his interaction with members of his close family. Clearly that mental health problem required at the time, and still requires, active treatment. Accordingly, the first threshold is established. I accept that the Applicant did, at the time of the offence and at the time of sentence, suffer from a mental illness within the meaning of s 32(1)(a) of the Mental Health (Forensic Provisions) Act 1990.

Appropriateness of a s 32 dismissal

22. I then go on to consider the appropriateness of a s 32 dismissal, that is, whether it is more appropriate to deal with the Applicant under the Mental Health (Forensic Provisions) Act 1990 rather than according to law. This, as the Crown submits, involves a discretionary judgment balancing the competing interests of the purposes of punishment and protection of the community on the one hand, and of the public interest in diverting a person from the criminal justice system in the interests of community protection on the other hand.

23. At the time of the offence the applicant was 44 years old. He had no criminal record. He was a man of prior good character. That is established not merely by his lack of a criminal record, but by other evidence. For example, Exhibit 7 is a testimonial from Mr Nicholas Schembri, a director of “Smart Installations”. He had been a close friend of the Applicant since 1994. At the time he wrote his reference he had known the applicant for 27 years. He had known him when he was an apprentice electrician. Mr Schembri described the applicant as one of his closest friends. He went on to say:

“Michael is one of the hardest working individuals, his work ethic second to none and the reason for his achievements in purchasing his home in his desired location of Bondi. He’s honest, intelligent, loyal and trustworthy.

I am aware of Michael’s conviction in relation to charges of intimidation against Noa Kolni. This was around the time of his marriage breakdown and inevitably his mental health, of which he had been getting professional help of, I believe his is recovering and am proud of him seeking the help which he needed. With the loss of both his parents, marital breakdown, lack of seeing his children and forced removal from his home - his resilience must be applauded. Michael is doing very well to get through this trying period of his life.”

I should point out that Mr Schembri does not appear to have been aware that the Applicant developed mental health problems at least five months prior to the offence involving his step-daughter.

24. There is another reference from Mr Keith Daly. He has been a close friend of the Applicant for nearly 30 years. They met in their senior years in High School. He described the applicant as:

“Highly loyal, dependable, had a great work ethic and a level of maturity beyond his years. Michael is also a very keen sportsman who was, and still is, very fastidious about his physical health and well-being. Michael has also become an accomplished electrician and team leader for Ausgrid, a company he has give nearly three decades of loyal service to.”

25. In the following paragraph, Mr Daly refers to the tireless work that the Applicant undertook to provide for his family and the devastation experienced by the Applicant when his matrimonial problems became evident.

26. When I consider the Applicant’s background, his prior good character, it appears to me to be in the best interests of everyone that the Applicant be diverted from the criminal justice system and that he receive ongoing treatment for his mental health issues. A person suffering from mental health issues which were probably not adequately under control as at 24 June 2020 is not an appropriate person to consider for either the purposes of general deterrence or specific deterrence.

27. I also bear in mind the fact that in the minds of some, the crime committed by the applicant is of no great moment. No doubt the Victim felt intimidated, but she made no immediate complaint. She made a complaint months later when it was clear that the Applicant’s mental health was deteriorating, and she feared that there might be a recurrence of his intimidating behaviour. There was no assault charged against the Applicant for his interaction with the Victim on 24 June 2020.

28. When one considers the sort of offences that fall within s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, this is below the mid-range of objective seriousness. The nature of the crime is not one which, in my view, would prevent the application of s 32.

Mental health treatment plan

29. There is before me a mental health treatment plan provided by the Applicant’s clinical psychologist, Mr David Marishel, and his agreement to act as a responsible person as described in s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990. The only amendment which needs to be made to the mental health plan prepared by Mr Marishel is that the Applicant will be required to engage with a psychiatrist not later than 31 March 2022.

Orders

30. For those reasons, I set aside the conviction recorded and the sentence passed by the Local Court at Waverley on 16 April 2021. I dismiss the charge, and discharge the Applicant into the care of Mr David Marishel, clinical psychologist, on the condition that he comply with the mental health plan contained in Exhibit 4, with the amendment that par 5 thereof is to be read as “not later than 31 March 2022”. I set aside the ADVO made by the Local Court at Waverley on 16 April 2021. The order is for a period of six months from today.

31. Now are there any other orders sought?

ALDERTON: No, your Honour, that’s everything.

…

ALDERTON: The Court please.

Decision last updated: 06 May 2022