Squires v R [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." 1. 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. 2. 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.