R v SW [2020] NSWDC 930

District Court New South Wales

Medium Neutral Citation: R v SW [2020] NSWDC 930 Hearing dates: 18-19 November 2020 Date of orders: 19 November 2020 Decision date: 19 November 2020 Jurisdiction: Criminal Before: Neilson DCJ Decision: See par [27]. Catchwords: CRIMINAL LAW – YOUNG OFFENDER – Appeal from Children's Court against severity of sentence – Five offences – Penalty for 3 offences already completed – Penalty for first and last offences considered – Only substantiated offence was the first (reckless wounding) – Aboriginal Australian suffering FASD and many forms of disadvantage – Appeal allowed – Order made under Mental Health (Forensic Provisions) Act 1990 sec 32. Legislation Cited: Children's (Criminal Proceedings) Act 1987 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: R – Crown SW - Appellant Representation: Crown Cornett Appellant Anderson-Clarke File Number(s): 2019/00146473 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is an appeal from decision made by McMahon CCM sitting in the Children's Court at Ballina on 16 June 2020. I state at the outset that I know Mr McMahon professionally and I have a high regard for him. The appellant is a young person. He is currently 17 years old. He pleaded "guilty" in the Children's Court to four offences. The first offence occurred at Tabulam on 2 April 2019. The second, third and fourth offences were all committed against Juvenile Justice youth officers at South Grafton on 4 May 2020, when the young person was in custody. At the time of those offences he was 17 years old. 2. The final offence was a contravention of a prohibition or restriction in an apprehended domestic violence order committed at Grafton on 12 May 2020. The offence was the heinous crime of the offender speaking to his girlfriend, who was the person in need of protection according to the Apprehended Domestic Violence Order ("ADVO"). The phone call was consensual. Subsequent to that phone call, the person in need of protection ("PINOP") gave birth to the offender's son. The offender and the PINOP by that time were cohabiting but their relationship is now over. 3. In respect of the primary offence, that of 2 April 2019, his Honour imposed a 15‑month probation order. In respect of the three offences against the Juvenile Justice youth officers his Honour imposed a three‑month period of probation which has expired. In respect of the final offence, the contravention of the ADVO, his Honour imposed a bond to be of good behaviour for a period of one year. 4. As the penalty for the offences against the three Juvenile Justice officers has expired, I believe it to be an otiose exercise to revisit those offences. I shall accordingly, in this appeal, deal only with the primary and the final offences. The appellant seeks that in lieu of the probation order made in respect of the primary offence and the bond imposed under s 33(1)(b) of the Children's (Criminal Proceedings) Act 1987, that the offender be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990. 5. The appellant is an Aboriginal Australian. His background is marked by disadvantage. The appellant was interviewed in or around September 2019 by Dr Meg Perkins, a clinical psychologist, having a doctorate in philosophy from the University of Queensland, awarded in 2015 in the fields of criminology, psychology and cultural studies. In addition to interviewing the appellant, Dr Perkins also had a long telephone conversation with the appellant's great aunt, who provided a lot of family background. The family and social background recorded by Dr Perkins is this: "[SW] was born in Casino, New South Wales, but his family are members of the community of Wahlubal People of the Bundjalung Nation living in Jubullum Village near the town of Tabulam. The Aboriginal people in this area were involved in violent conflict with the white settlers from 1840 up until the late 1860s, and were then settled across the river in the 'Black Camp' near Tabulam, which is now Jubullum Village. [SW] says that he speaks some of his traditional language. [His aunt] states that [SW] was exposed to alcohol in utero, but probably not any other drugs, and that he experienced domestic violence and family substance abuse as a child. [His aunt] was working at the local preschool when [SW] was attending there and he was known to have behaviour problems, 'not listening' and not following directions. He was never assessed by a speech and language pathologist as it was simply assumed that he was being 'naughty'. In 2007 [SW]'s cognitive functioning was assessed and was recommended that he spend another year in preschool. In 2016, he was suspended from school for verbal and physical abuse and violent threats made to others. There are no other records on the school counsellor files." 1. Whilst he was in juvenile detention the appellant was assessed by a Dr Michael Gathercole, who would appear to be employed by Juvenile Justice. He diagnosed the appellant to have an intellectual disability with ADHD. Although the intellectual disability was said to be mild, Dr Perkins points out that the diagnosis of any intellectual disability means that the patient suffers from a severe deficit in intelligence. 2. Dr Perkins herself spent considerable time considering this matter and has diagnosed Foetal Alcohol Syndrome Disorder (FASD). That is accepted by all as the correct diagnosis for the appellant's mental problems. At [3.4] of her report of 30 September 2019 Dr Perkins says this: "[SW] has at least three severe neurodevelopmental impairments (intelligence, attention and affect regulation) and so his condition meets the 2016 Australian Guidelines for the diagnosis of FASD, as laid down by the Federal Department of Health. His diagnosis of intellectual disability implies that his adaptive functioning is also severely impaired and his impaired executive functioning appears to be another severe cognitive deficit." In the following paragraph of her report Dr Perkins points out that the appellant's handwriting suggests that his motor coordination is impaired and that he would benefit from assessment via an occupational therapist. She also points out that the appellant has not attended school since year 8 and his academic achievement has been impaired. The appellant also has a speech problem and Dr Perkins recommended that he be assessed by a speech and language pathologist. She also pointed out that the appellant's memory had not been assessed by any practitioner. Importantly, for the current case is [4.4] of Dr Perkins' assessment which is this: "The literature on the management of inappropriate behaviour in cases of FASD stresses 'supervision, supervision, supervision'. Left to himself, [SW] will live in the present and react impulsively to whatever is happening around him. He will not be able to foresee the future consequences of his actions, nor to learn from the past negative consequences he experiences. If he associates with people who are drinking, using illicit substances, or engaging in criminal behaviour, he will do as they do." In other words, the appellant's suffering from FASD leads to a grave tendency to react impulsively and to follow the behaviour of others. 1. The primary offence was a charge that between 10:00pm and 11:00pm on 2 April 2019 at Tabulam he did recklessly wound OA. The appellant pleaded "guilty" to that offence. The facts are these. The appellant and OA are cousins. They are also friends. OA was aged 19 at the time of the offence. The appellant was 15 years and 11 months old at the time, three weeks short of his 16th birthday. The age difference between the two was obviously not great but the level of maturity may have been much greater. 2. On 2 April 2019 OA was drinking with others including the offender's late mother, whom I shall not name for cultural reasons. They were drinking not in the home occupied by the appellant and his mother but elsewhere in Tabulam. The appellant was at home in Jubullum with a friend watching television. The appellant admitted to Yvonne Dengate, a caseworker with Juvenile Justice, who prepared a report bearing date 7 November 2019, that he was using ice at the time, that is, crystal methamphetamine. 3. About 10:30pm on 2 April 2019 the offender's mother went back home in order to use the bathroom, a normal practice of hers. For a reason that is currently not known an argument developed between the appellant and his mother. The argument continued in the front yard of the family home. As his mother was leaving to re-join her group of fellow drinkers the appellant told his mother to return to the house with OA. 4. When the appellant's mother returned to her group in Tabulam she told them that she and the appellant had argued. According to OA she complained about his behaviour and was "swearing" about him. The offender's mother then returned to the family home in a car with other people but OA walked to the appellant's home. When his mother and OA arrived at the family home the appellant's friend, CC, told the offender to go outside. The appellant did so but he had armed himself with a large purple‑handled knife. As the young person approached OA, OA had his back to him but for some reason he must have been aware that the appellant had a weapon and he turned around seeking to take the knife from the appellant. In the process of the struggle the appellant stabbed AO once in the back. When that occurred OA and the offender's mother went to a nearby relative's house. The ambulance was called and OA was taken by ambulance to the Lismore Base Hospital. 5. The wound inflicted by the appellant was a 2 centimetre‑long laceration to the upper back at the level of C7‑T1 located on the left side of midline, oriented horizontally and extending into the underlying muscles of the back. Clearly, the epidermis and dermis were both pierced and the injury amounted to wounding in law. 6. I observe that it is fortunate that the wounding was on the left side of the midline of the back because if the knife penetrated the C7‑T1 space where the C7‑T1 disc is, there may have been damage to the spinal cord which might have caused extreme damage to OA. There is no medical evidence other than what is contained in the agreed facts, so I assume that the victim recovered fairly quickly from what, to some extent, can be seen as a superficial wound. 7. It is clear that the victim of this wounding was a cousin and a friend of the appellant. One can see that the appellant's actions appear to have been governed both by his drug use and impulsivity related to his then, yet to be diagnosed, FASD. 8. As a result of this offence the appellant was remanded in custody. Between that offence and his appearance before McMahon CCM in the Children's Court at Ballina on 16 June 2020 the appellant was incarcerated on three occasions. He was held in custody from 16 April to 21 June 2019, a period of 73 days. He was also detained on 17 August 2019 but that was only for that day. He was also in custody from 11 November 2019 until 24 February 2020, a period of 105 days. All told he was in custody for 179 days which on my calculations was 25 weeks and four days, or three days short of six months. 9. The appellant was discharged from custody on 24 February 2020 to attend a three‑month rehabilitation program for AOD users at Coffs Harbour, known as the Junaa Buwa course and, on my calculations, he was in that course, which can be categorised as quasi‑custody, for one day short of 12 weeks. None of those periods of detention or quasi‑detention were formally taken into account in the sentences imposed by the learned Children's Court Magistrate, but no doubt he was aware of them but did not formally take them into account in the penalties which he imposed. 10. The offences against the three Juvenile Justice officers occurred when the offender was in custody at Acmena at South Grafton. The three Juvenile Justice officers were seeking to restrain the appellant who was involved in aggressive behaviour towards another young person. The appellant's behaviour was clearly aggressive. It was clearly reactive and it was clearly abusive. The appellant's behaviour involved spitting at the Youth Justice officers and making threats which were in themselves highly offensive but completely inappropriate, again indicating again behaviour which was impulsive reaction to the officers seeking to restrain him, an aspect of his FASD. 11. The final offence also occurred when the appellant was in custody in Acmena Juvenile Detention Centre at Grafton. He registered a new contact to make phone calls to nominating her as Kimberly Smith with a given phone number. That was not in fact Kimberly Smith but the phone number of his girlfriend, KB, whom an earlier ADVO prevented him from contacting. Between 8 May 2019 and 12 May 2019 the appellant made a number of calls to KB, making Juvenile Justice believe that he was, in fact, speaking to Kimberly Smith. When Juvenile Justice believed that there had been a breach of the ADVO they contacted the police who intercepted another phone call and in which the appellant discussed with his girlfriend the subject of the ADVO. 12. There have been major developments in the appellant's life since his first period of detention and the current time. Most of these are positive. In a Juvenile Justice report bearing the date 5 June 2020 the last such report, which would have been before the Children's Court on 16 June, the following was stated: "Whilst in custody, [SW] has participated in programs, specifically Aboriginal cultural dance programs and has benefitted from talking, taking part in dancing performances and learning about various Aboriginal cultural practices from areas surrounding Acmena. [SW] demonstrates a passion for Aboriginal cultural practices and was heavily involved in cultural practice programs and discussion whilst he was in Junaa Buwa. [SW] has been subject to ongoing bail supervision since his discharge from Acmena and has been in regular contact with Lismore caseworker whilst in Junaa Buwa‑Coffs Harbour. …[SW]'s aunty has confirmed that [SW] is able to continue to reside with her [in] Maclean, NSW, 2463. [His aunt] states that [SW] has lived with her when he was younger and this has been positive. [She] states she sets boundaries and rules for [SW]. [She] states that Maclean is a suitable environment for [SW] as he does not know any negative peers in this area. [SW] has many cousins and extended family members in the Maclean and Yamba region and he's enjoying spending time with his family. [SW] is attending Distance Education classes at Gurelgham (Grafton) where he is currently doing year 9 studies, cultural activities and being assisted to achieve goals such as getting his driver's licence. [SW] states he is enjoying school attendance (three days per week) and that he is confident of gaining his learner driver's licence. [SW] states he is enjoying spending his time with cousins and extended family. [SW] spends time with his cousins in Maclean or in Yamba, they spend a lot of their time fishing. [He] has recently graduated after successfully completing the Junaa Buwa rehabilitation program. [SW] has been participating in programs that address managing problematic behaviours, improved life skills and interpersonal skills, learning alternative habits to develop personal resilience and confidence, building social networks and skills to reintegrate into the community. [He] is currently engaged in three months of art care support. [SW] engages with Junaa Buwa through weekly phone calls. [SW] has been referred to a mentoring service, provided by Mission Australia. Peter Drayson, case management from Mission Australia has confirmed that he will commence mentoring with [SW] on 12 June 2020. Mr Drayson will assist [SW] to attend important appointments, increase participation in structured/positive activities and to achieve goals such as gaining his driver's licence. [SW] and his family will be meeting with the Grafton Aboriginal Police Liaison Officer next week to discuss possible programs [SW] can be involved in and transportation to football games and practice. [SW] has been referred to The Buttery's Intra‑Drug and Alcohol Program. [SW] is engaged with the Aboriginal counsellor who is currently providing phone support and plans to conduct face to fact consults in the near future. [SW] has rediscovered his passion for fishing and [his aunt] has recently moved to Maclean. Her house is very close to the water. [SW] spent most of his leisure time at Junaa Buwa fishing (very successfully). [SW] states he has cousins that live in the Yamba area and he spends his leisure time fishing." 1. Since that report was made there have been developments which have been summarised by the appellant's solicitor in her affidavit sworn on 17 November 2020, albeit that 17 March 2020 was typed on it. The relevant paragraph of the affidavit is this: "Recent inquiries with the appellant's current Youth Justice officer, Ms Jeanette Clarke, have revealed a number of significant changes in the appellant's circumstances, treatment and support since the matters were finalised in [the Children's Court] including the following: The appellant's mother died as a result of complications giving birth to [a] child in Tabulam earlier this year and the appellant has been living in Tabulam with his grandparents since that time. The appellant is no longer in a relationship with his former girlfriend, [KB]. The appellant's aftercare program with Mission Australia has been extended to December because of his family circumstances. The appellant is meeting on a weekly basis with Louise Sheehan from Justice Health. The appellant is compliant with his medication. The appellant's NDIS application has been granted and Magenta Community Services now providing his support coordination. A letter of proposed support has been provided by Magenta Community Services and this is attached to this affidavit and marked with the letter A. This support includes the appointment of a mentor, the appointment of a behaviour therapist, plans to arrange appropriate independent accommodation and support to attend upon medical and other providers. (The proposed treatment plan in relation to the application under section 32 is set out in this document.) The appellant has been actively engaging with his service providers and with his treatment. Youth Justice have indicated that appropriate supports are now in place for the appellant [to] separate [from] their supervision." 1. Yesterday Mr Peter Robert Drayson from Mission Australia gave sworn evidence to this Court. The evidence was impressive. Mr Drayson has been working with the appellant since his appointment on 12 June 2020. Mr Drayson meets with the appellant weekly. That has only been interrupted on two occasions, the two weeks immediately following the appellant's mother's tragic death. It is clear from Mr Drayson's evidence that he has high regard for the appellant, for his progress and by his excellent attitude to his rehabilitation. Usually Mr Drayson only works with clients of Mission Australia for periods of three months. His appointment to work with the appellant has been extended to 18 December 2020 and it is possible that may be extended further. The extension was caused by the tragic death of the offender's mother and the prospect of that destabilising the offender's rehabilitation. Mr Drayson described the appellant as the most remarkable client that he had ever engaged with, in his career as a counsellor in the aspect of AOD rehabilitation. He also remarked very positively on the appellant's interaction with Juvenile Justice and of his passion and enthusiasm for dealing with his own culture. 2. Since his mother's tragic death the offender has taken a paternal role towards his younger siblings, as I understand it, two younger brothers and a sister. The baby recently born to his late mother was also a boy. Currently the appellant is living with his grandparents in Tabulam but arrangements are trying to be made to obtain accommodation for the appellant in Coffs Harbour, clearly a place that he enjoyed being in when involved in the Junaa Duwa program and a place where the appellant believes he can make a fresh start away from areas where he has been exposed to deprivation and tragedy since his birth. 3. Mr Drayson's evidence was not only impression but it augurs extremely well for the appellant's future. The Crown concedes that the appellant is entitled to be dealt with under s 32 because of the diagnosis made by Dr Perkins and an alternative diagnosis made by Dr Gathercole and referred to in a medical report from Juvenile Justice bearing date 15 May 2020. That provides these diagnoses: "First Episode Psychosis, complex post‑traumatic stress disorder, generalised anxiety disorder, attention deficit hyperactivity disorder and foetal alcohol spectrum disorder." I again remark, as I have remarked constantly over the last 26 years, that the provision of a large number of psychiatric conditions requires the application of Occam's razor, why postulate multiple diagnoses when one diagnosis will suffice, and that is FASD? The Crown opposes the grant of the relief sought by the appellant on the grounds that dealing with the matter under s 32 is inconsistent with the gravity in particular of the reckless wounding alleged on 30 April 2019. 1. However, when one considers the victim, the lack of any medical evidence to suggest that the wound was not easily closed and rapidly healed, the fact that the offender was under the influence of methylamphetamine at the time, that the wounding may have resulted from perhaps jealousy that a cousin and a friend should be drinking with his mother, and the offender's personal background, which had not been diagnosed at that time, the gravity of the wounding falls substantially away. 2. The offence of 8 May 2019, breaching the ADVO, was in my view technical, bearing in mind that it appears that the contact was consensual and, subsequently, for some period of time the appellant and KB lived together during the period when KB gave birth to the offender's son. Were the only offence before me that of 8 May 2019, I would deal with the matter under the children's equivalent of s 10 of the Crimes (Sentencing Procedure) Act 1999. 3. I believe that this is an appropriate case to make an order under s 32 of the Mental Health (Forensic Provisions) Act 1990 and that has a number of positive outcomes for a young person whom our community needs to seek to compensate for the circumstances of his birth disability and juvenile deprivation. I ought also point it out that there is some evidence to suggest that the offender was the victim of crimes as a child for which he has been referred to the JIRT. 4. I, therefore, will make an order sought by the appellant. The order is this. The penalties imposed by the Children's Court at Ballina in respect of the offence of 2 April 2019 and the offence of 12 May 2020 are set aside. In lieu thereof I dismiss those charges. I release the offender into the care of Peter Drayson of Mission Australia and Nathan Rose of Magenta Community Services or his nominee on condition that the appellant attend upon them in order to pursue the following: (1); to continue to engage with Louise Sheehan of Justice Health weekly until that support is withdrawn; (2) to continue to engage with the Community Mental Health team and attend all appointments as arranged through Magenta Community Services [MCS], including appointments with his caseworker, general practitioner and treating psychiatrist and/or psychologist; (3) continue to take medication as prescribed by any treating practitioner; (4) to continue to engage with Mission Australia aftercare plan, including meeting weekly with a mentor from Mission Australia, Peter Drayson, until such support be no longer available; and (5) continue to engage with the NDIS provider, MCS, including: 1. meeting on a regular basis with an appointed mentor and accepting his or her support in relation to attendance on his treating professional advisers; 2. attending all appointments made with his occupational therapist/behavioural therapist/speech therapist; 3. residing in accommodation arranged by MCS; and 4. attending TAFE or employment as arranged. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2022