Local Court New South Wales Medium Neutral Citation: Police v Russell [2022] NSWLC 11 Hearing dates: 13 July 2022 Date of orders: 25 July 2022 Decision date: 25 July 2022 Jurisdiction: Criminal Before: Stewart LCM Decision: Application for diversion refused Sentence: Conditional Release Order s 9(1)(b) for 2 years with conditions as to abstinence and treatment Catchwords: Supply prohibited drug to school children – defendant in position of trust as teacher – serious offending – longstanding mental health issues – discretionary judgment – protection of community – sentencing discretion – purposes of sentencing Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s15A Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) s 25(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 5, 12, 14, 15 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 Cases Cited: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DPP v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 Category: Principal judgment Parties: NSW Police Force (prosecution) Lauren Gabrielle Russell (defendant/applicant) Representation: Sergeant Coote, Police Prosecutor Counsel: D Bhutani for defendant/applicant Solicitors: NewLaw Legal File Number(s): 2022/00033673 Publication restriction: No information may be published or broadcast in a way that connects any person referred to in these proceedings who was a child or were children at that time: section 15A Children (Criminal Proceedings) Act 1987 (NSW) Judgment 1. Lauren Russell has been charged with Supplying a Prohibited Drug contrary to section 25(1) Drug Misuse and Trafficking Act 1985 (NSW). 2. Application is made for her to be dealt with under the provisions set out in section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). That Act of Parliament became effective in late March 2021 and is applicable for diversionary applications since that time. The forerunner to that legislation was section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). 3. The orders that may be made by a magistrate on such an application are set out within section 14 of the newer Act. 14 Orders Magistrate may make (1) A Magistrate may make an order to dismiss a charge and discharge the defendant-- (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment, or (c) unconditionally. (2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise. 1. Relevant case law under the former Act are still relevant when considering diversion applications under the newer Act. 2. In DPP v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [75], [76] and [80] McColl JA said that there were at least three decisions to be made by a magistrate in dealing with a s 32 application. They relate to eligibility to be dealt with under the relevant legislation; if satisfied as to eligibility, then whether it is more appropriate to deal with the defendant under the diversionary legislation rather than in accordance with the law; and if appropriate to do so, to make orders of diversion. 3. Those questions remain relevant with regard to the current legislation. 4. The 'first question' is referenced in section 12(1) of the Act. 12 Defendants with mental health impairments or cognitive impairments (1) A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both. 1. The meaning of 'mental health impairment' and 'cognitive impairment' are set out in sections 4 and 5 respectively. In the present case, the defendant has a mental health impairment, and I will refer to the relevant documents establishing that finding shortly. She is not a mentally ill person or a mentally disordered person [see s 12(3) of the Act]. 2. The second question in El Mawas (supra) therefore needs to be determined. 3. Section 12(2) of the Act embodies that second question: 12 Defendants with mental health impairments or cognitive impairments (1) ….. (2) The Magistrate may take action under this Division only if it appears to the Magistrate, on an outline of the facts alleged in the proceedings or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law. (3) ….. 1. I have regard to the following: 1. an outline of the facts set out in a police fact sheet 2. report of Dr Anthony Samuels, consultant psychiatrist dated 26 May 2022 3. report of Dr David Grace, consultant psychiatrist dated 6 May 2022 4. letter from Dr Kiran Nair, consultant psychiatrist to Dr Grace dated 15 March 2022 5. letter from Dr Kiran Nair to Dr Grace dated 31 March 2022 6. letter from Caroline Dwyer, addiction and trauma specialist and forensic mental health expert dated 25 June 2022 7. letter from Lauren Caiafa, friend of the defendant dated 21 May 2022 8. letter from Gabriella Ige, friend of the defendant dated 20 May 2022 9. letter from EF, parent of child at the school where the defendant taught dated 7 June 2022 10. various drug screening test results for both illicit drugs and lithium levels 1. I have also been assisted by oral submissions from the police prosecutor and Counsel for the defendant, as well as written submissions prepared by Counsel. 2. There is no doubt as to the Applicant's eligibility for consideration for diversion. There is a clear diagnosis within the reports tendered of Bipolar Mood Disorder and Substance or Polysubstance Misuse Disorder. The applicant was first diagnosed with bipolar disorder in 2008/2009. There have been reported manic episodes, particularly in 2011 and again in 2015. The prosecution appropriately conceded the defendant's eligibility for consideration of diversion. 3. As to the second question, I note the prosecution oppose the making of such an Order. I will initially have regard to the police fact sheet. Any reference to a child or children will be anonymized in accordance with non-publication requirements. Outline of Facts 1. The defendant was working at a community high school within the Sutherland shire as a year 12 adviser. On 15 December 2021, she messaged a student AB via WhatsApp asking if she wanted to 'catch up and have a smoke'. AB was 15 years old at the time. She agreed and arrangements were made to meet. 2. About 3:30pm that day, the defendant picked up AB and another child CD before driving towards CD's house and parking nearby. CD was 16 years old. 3. The defendant provided AB and CD with a small amount of cannabis for their bong. All three persons took turns smoking cannabis from the bong until they were finished. 4. The offender drove the children to a local skate park and when speaking to some persons there, said that she had just smoked drugs with AB and CD. 5. About 7:30pm on Friday 4 February 2022, the defendant was arrested and charged by police. Psychiatric Reports 1. In Dr Samuels report, the defendant said that she returned to school in 2022 and upon arrival the principal gave her a letter from the Professional and Ethics Standards of the Department of Education. The letter indicated that she had been in breach of the departmental code because she had been video recorded smoking a bong in the company of students and was seen with students in her car (para.43). I was not provided with a copy of this video recording and do not know if it relates to the incident for which she was charged. 2. She was told to go home. This was on 3 February 2022, nearly 7 weeks after the incident, being the day prior to her arrest. 3. Ms Russell had a consultation with Dr Grace that day. He described her as distressed, anxious and depressed. She was upset to have received the letter (para.43). There is no suggestion that she was still manic that day, though she claimed to be still manic at a training day for school in January 2022 (para.98 Samuels). 4. She told Dr Grace that the events described in the letter occurred at a time when she was hypomanic (para.44). 5. Dr Samuels refers to a letter from Dr Grace dated 15 February 2022 (not tendered) (para.45) which refers to the defendant telling Dr Grace that she denied supplying anyone with cannabis. Ms Russell no longer denies that criminal conduct. 6. Dr Samuels refers to a letter from Dr Nair dated 15 March 2022 which the following was said (para.47 Samuels): "Her mood became elevated during a period of excessive alcohol consumption during the Covid lockdown in the second half of last year, she became hypomanic and engaged in uncharacteristic unprofessional behaviour, and was charged by police. She admitted to problematic use of drinking during the second half of last year due to social isolation with a minimum of 7.5 standard drinks for six months and on weekends would drink beer and cider in varying amounts. … She had been abstinent from alcohol since the incident at school and admitted to cravings." 1. I note that on this version the problematic drinking was for a duration of six months and that she has been abstinent from alcohol since the incident at school, i.e. 15 December 2021. 2. However, in the history given to Dr Samuels (para.88) he refers to what she told him: "She has not had alcohol since January of this year but acknowledged that during the lockdown between July and October 2021 she was drinking excessively, up to one bottle of wine per night. She stopped this once she went back to the routine of school." 1. Later in the report, Dr Samuels refers to the defendant drinking harmfully over a four-month period whilst in lockdown with her husband. This seemed to lead to a mild elevation of mood that was further compounded by smoking some marijuana in early December 2021 and led to her becoming increasingly elevated in mood (para 111). 2. I note that she told Dr Nair that she had been abstinent from alcohol since the date of the incident, i.e. 15 December 2021 (paginated page 34 tender bundle). In contrast, she told Dr Samuels that she had not had alcohol since January 2022 (para.88). I note her problematic drinking stopped once she went back to the routine of school, (para.88) which was in November 2021. She told Dr Nair that the problematic drinking had been for six months, but told Dr Samuels it had been for the period July until November 2021, and later described as a four month period (para.111). 3. I note in the report from Dr Grace (tender bundle paginated page 28) that it was Ms Russell who told the psychiatrist that the offence occurred at a time when she was hypomanic, rather than Ms Russell describing what happened and the psychiatrist providing that opinion, though he later formed that opinion. 4. There is no explanation given as to why, if Ms Russell was hypomanic, and aware that she was hypomanic, she did not seek treatment prior to the day on which she received the letter in February 2022, well after 15 December 2021. She had previously sought treatment from psychiatrists. On one occasion this led to a rebalance of her prescribed medications requiring hospital admission. 5. I note that Ms Russell said that her husband did not notice her mental state (Samuels para.99). They have been together for over 12 years. There is reference within the material to the defendant having previous episodes of manic behaviour in earlier years (Samuels at para.83 and 84). She was with her husband overseas in 2015 when she smoked cannabis and became manic, telling Dr Samuels that there were a few other lesser incidents that her husband and Dr Foster would have been aware of (para 84). 6. I glean from that information that her husband is able to recognise when the applicant was having manic episodes. However, when referring to the period of January 2022 when she was still smoking marijuana occasionally, she told Dr Samuels that her husband did not notice her mental state (para. 98 and 99). 7. The defendant told Dr Samuels that during this period, i.e. around the time of the offending conduct, she was not eating, it was hard to sleep, she was excited, she was talking a lot. She described further behaviour in January 2022 as being "over-the-top" (para.98). She told Dr Grace that people who knew her could see that she was behaving in a manner which was out of character for her (paginated page 29 tender bundle). There is no independent evidence of that. None of the persons who have supplied letters in the tender bundle were aware of her manic state, having not seen her at the relevant time. 8. I further note Dr Samuels opinion (para.117) that "between February 2021 and February 2022 Ms Russell had not seen Dr Grace because she felt she was well." 9. If Ms Russell felt that she was well in the 12 month period February 2021 to February 2022, which includes the time that she says that she was drinking excessively for either 4 or 6 months, it is entirely unclear to me how it is that she is able to claim that her conduct occurred at a time when she was hypomanic. Was she well at the time, or was she hypomanic? If she felt well, how is it that she knows she was hypomanic at the relevant time, and gives details of manic behaviour even in January 2022? There may be a psychiatric explanation, but there is none before me. 10. No explanation is given as to why the defendant's mood remained elevated by problematic drinking, when on one version her problematic drinking ceased in November 2021, which is some time prior to the incident of 15 December 2021. Nor is there confirmation that if the drinking had in fact ceased in November 2021 upon school resuming, that any elevated mood would have remained elevated in the absence of problematic drinking. 11. In the report from Dr Grace (see Samuels para 53): "He believed that Lauren was hypomanic at the time of the alleged commission of the offence, that hypomanic episode is a feature of her bipolar affective disorder diagnosis which is well-established for many years. He noted that bipolar disorder is a long-term illness, the actual episodes of illness during which the affected person is otherwise excessively elevated or excessively depressed are time-limited, that the mood disturbances seen in bipolar affected patients are significant." 1. There is no indication by Dr Grace as to the time parameters of excessive elevation or depression. Nor is there information as to a likely time frame for that elevation to return to normal after cessation of drinking excessive alcohol, or how long it takes for elevation to occur after consuming cannabis. 2. Dr Samuels opines (para. 111) that Ms Russell did suffer a mental impairment at the time of the offence that her emotional well-being, judgment and behaviour was markedly disordered. He repeats what he had been told of her drinking harmfully over a four-month period whilst in lockdown with her husband. This seemed to lead to a mild elevation of mood that was further compounded by smoking marijuana in early December 2021 and led to her becoming increasingly elevated in mood. The imprecise 'early December' is later made more specific by Ms Russell, who says she started smoking cannabis around 11 December 2021 (para 92), which is the Saturday prior to the last week of term and 4 days prior to the offending conduct. 3. I note that the defendant not only told Dr Grace that she was hypomanic, that she told Dr Samuels that "she believes that her judgement was significantly impaired and that she would not have acted in this way under normal circumstances." 4. Ms Russell told Dr Samuels of a further incident on the last day of school where she was driving two year 12 male students in her car and asked them if they wanted to smoke. They said 'yes', and she took them into the parking lot of the church near the school (para.97). 5. The defendant told Dr Samuels that she sourced the cannabis from a 17-year-old male who was a former student (para.93). 6. The defendant told Dr Samuels that she was not smoking marijuana regularly before this incident (para.89), noting her belief that she started smoking around 11 December 2021 (para.92). However, she told Dr Nair that she was smoking cannabis at the beginning of December 2021, approximately four days a week, smoking roughly $50 worth, smoking with her peers also which would typically occur in the evening and after school. This is yet another inconsistency in the versions given by Ms Russell. 7. Dr Grace refers to a history from both Mr and Mrs Russell from which he believes the applicant was in a hypomanic state at the time of the offence. No detail is provided of the observations of Mr Russell. 8. The letter from Caroline Dwyer refers to treatment following first consultation on 2 May 2022. There is reference to the defendant stating "she was drinking excessive amounts of alcohol to cope and experiencing hypomania during the time of the offence. This then led to further deterioration which resulted in her using cannabis, which further exacerbated her hypomania." That quote suggests that cannabis had no role to play in the offending conduct as it suggests she started smoking after the event (paginated page 47 tender bundle). Pathology Report 1. In oral submissions, counsel relied upon a document (paginated page 41 tender bundle) which indicates the defendant took 250 mg of lithium at 9.30pm on 3 February 2022. 2. In written submissions, Counsel suggest that evidence shows that at the time of the offending the applicant was significantly under-medicated, citing the report of Dr Grace at paginated page 29 of the tender bundle. 3. Closer inspection of both documents raises a concern. Firstly, the pathology report refers to a therapeutic range of 0.6 – 1.2, and that the sample taken from Ms Russell was recorded as 0.3. The report indicates that the lithium therapeutic range is based on trough levels 8 – 12 hours after the last dose. The last dose was at 9:30pm the day before the sample was taken. The precise time of the sample being taken appears not to have been recorded, showing 00.00 with the words "not stated" concerning the time of the sample. 4. The report of Dr Grace refers to pathology tests on 23 February 2022 in which a 12 hour post-dose serum lithium was measured at 0.4. That particular test is not the one referred to in the pathology report at page 41 of the tender bundle. Pathology testing from 23 February 2022 was not included in the tender bundle. 5. However, accepting Dr Grace's opinion the sample taken on 23 February 2022 that the defendant's lithium level was sub-therapeutic placing her at risk of either a manic or depressed episode, I am not satisfied that the results conclude that Ms Russell was significantly under medicated at the time of offending. It is merely a possibility. The results relate to the time of testing, not to the time of the offending. An inference is available that the defendant's lithium levels may have been sub-therapeutic in December 2021. General Remarks 1. I accept that the defendant was diagnosed with bipolar disorder in 2009 and that she has seen medical specialists and been medicated since that time. 2. I accept that on occasions the defendant has suffered from hypomania likely associated with her polysubstance use disorder (alcohol and cannabis). 3. I have highlighted a number of inconsistencies between the information given by Ms Russell to various psychiatrists. Notwithstanding those inconsistencies, there can be no doubt that the defendant was smoking cannabis at the relevant time, and likely in days prior to that time. I am not satisfied that she was consuming excessive quantities of alcohol at or near to that time. 4. The fact that the defendant was smoking cannabis does not of itself establish that she was hypomanic at the time of the offending. 5. However, for the purpose of this diversionary application, I find on the balance of probabilities that the defendant was suffering from hypomania at that time thus establishing a causal link to the offending conduct. 6. I accept that the defendant is a person of prior good character. 7. I accept that the defendant is an intelligent woman who has achieved academically including being granted a scholarship regarding her teaching career, and that there is material in the tender bundle that would support a finding that she is regarded as a capable and dedicated teacher. Relevant Considerations – section 15 of the Act 1. I will now take into account the matters that may be considered in deciding whether or not it is more appropriate to deal with the defendant in accordance with the relevant Division of the Act, set out in section 15: The nature of the defendant's apparent mental health impairment or cognitive impairment – Section 15(a): 1. The defendant has a long-standing diagnosis of bipolar disorder since 2009. She also has a diagnosis of polysubstance misuse disorder. On occasion she has suffered manic episodes. Dr Grace notes that mood disturbances can affect a person's ability to think and accurately perceive the world in which they live with impairment of the emotional well-being, judgement and behaviour of the affected person. The defendant was on balance suffering hypomania at the time of offending. 2. Ms Russell has been in receipt of treatment over a number of years by way of prescribed medication. The nature, seriousness and circumstances of the alleged offence – Section 15(b) 1. The supply of a prohibited drug by a teacher to a school student is particularly serious. It is a significant breach of trust between teacher and student and involved more than one student. 2. The maximum penalty for an offence of supplying a prohibited drug contrary to section 25(1) Drug Misuse and Trafficking Act is 2 years imprisonment and or a fine of up to $5,500. 3. Counsel notes that "the applicant concedes the seriousness of this example of offending and in particular recognises the position of authority she was in as aggravating the conduct". 4. Counsel suggested in written submissions that when viewed in the context of the causal link, the seriousness of the offending should be given less weight than in circumstances where no causal link exists. 5. That submission is not strictly correct. The seriousness of the offending is unaffected by the causal link. The offence of supplying prohibited drugs to a student remains serious. A causal link to the offender's mental health concerns may reduce the moral culpability of an offender. 6. I will further address the issue of seriousness of the offence shortly. The suitability of the sentencing options available if the defendant is found guilty – Section 15(c) 1. Counsel's submissions suggest that any sentencing option, should diversion be refused, will likely carry with it a conviction and have significant and long-term impacts on the defendant. 2. There can be no doubt that sentencing options could include a conviction, but as pointed out to Counsel during submissions, options also include the possibility of a non-conviction. Whether or not a conviction is recorded appropriate sentencing options would include supervision and a requirement for compliance with treatment and medication. 3. In the circumstances of the offending and taking into account all of the information of which the court is currently aware concerning the defendant and the offending, this is not a case where the threshold involving section 5 Crimes (Sentencing Procedure) Act 1999 (NSW) has been crossed. Relevant changes in the circumstances of the defendant since the alleged commission of the offence – Section 15(d) 1. Since police took action against the defendant, she has re-engaged with medical professionals including her general practitioner and psychiatrists. Her medication has been adjusted and she has been compliant. 2. The defendant is receiving support with Carolyn Dwyer, addiction and trauma specialist and a forensic mental health expert regarding mental health, substance misuse and trauma associated with legal issues that resulted in her being suspended from her job. 3. The defendant has been unable to work as a teacher. It is indicated in Dr Samuels report (para.80) as at 26 May 2022 that Ms Russell is still receiving remuneration though the investigation by the Department of Education is not complete. She expressed that the Teachers Federation have stopped supporting her because of her guilty plea. 4. The defendant has re-engaged with couples therapy to address issues in her marital relationship. The defendant's criminal history – Section 15(e) 1. The defendant has no prior criminal history Whether the defendant has previously been the subject of an order under this Act or Section 32 of the Mental Health (Forensic Provisions) Act – Section 15(f) 1. The defendant has not previously been the subject of any diversion orders. Whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan – Section 15(g) 1. Treatment plans are contained within the reports of Dr Samuels and Dr Grace. They include monthly sessions with a psychiatrist (Dr Grace); compliance with medication as prescribed; continued engagement with the addiction therapist, Carolyn Dwyer; urinalysis drug screening, and review by Dr Nair. Whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public – Section 15(h) 1. I am satisfied that if the defendant remains abstinent from illicit drugs and does not consume more alcohol than any limit suggested by her medical practitioners, and if the defendant complies with the treatment plans, she is unlikely to endanger the safety of any person. Other relevant factors – Section 15(i) 1. The abuse of trust is a statutory aggravating factor pursuant to section 21A(2)(k) Crimes (Sentencing Procedure) Act. The supply of drugs is an offence that ordinarily requires a measure of general deterrence to deter other like-minded people from committing similar offences. 2. In Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 at [17] Howie J. provided guidance in answering this question: "In order to determine whether it is more appropriate to deal with the applicant under Part 3 the Magistrate has to perform a balancing exercise; weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system. It is a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case. But it is one that cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act. It should be emphasised that what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation." 1. The nature of the charge itself certainly does not preclude the consideration of discretion being exercised in favour of the accused. 2. There are both more and less objectively serious offences before the courts where such applications have been either granted or refused. 3. The public interest in punishment being imposed for the protection of the community is very high. The offence involved the supply of a prohibited drug to a juvenile. That supply was carried out by a teacher in breach of the special trust that arises through that relationship. The impact of illicit drugs in the community is well known. 4. So much is appropriately conceded by counsel. Other purposes of punishment include the need for general deterrence, though that may be ameliorated to some extent by mental health issues where there is a causal connection between the mental health condition and the offending conduct. 5. In this case, the seriousness of the offending conduct makes more important the public interest in punishment being imposed for the protection of the community and less likely that it is appropriate to deal with the accused under the provisions of the Act. 6. The application for diversion is refused. Sentencing Proceedings 1. The offender initially pleaded not guilty to the charge of supply prohibited drug. I note her denial of offending to Dr Grace. However, a guilty plea was soon forthcoming and in accordance with the principles enunciated in the decision of R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32], I allow a discount of 20 percent off the penalty that might otherwise be imposed. 2. The maximum penalty for an offence of supplying a prohibited drug contrary to section 25(1) Drug Misuse and Trafficking Act is 2 years imprisonment and or a fine of up to $5,500. 3. The offender has no prior criminal record. 4. I have already referred to the facts in the matter contained within the police facts document. 5. The offence is aggravated by: 1. it being committed in the presence of a child under the age of 18 pursuant to section 21A(2)(ea) Crimes (Sentencing Procedure) Act 2. The offender abused a position of trust or authority in relation to the victim pursuant to section 21A(2)(k) of that Act. 1. At the conclusion of my decision refusing the diversionary application, I indicated that I had already received voluminous material regarding the defendant – and by that I mean factual and subjective material. 2. I asked the learned prosecutor whether he wished to be heard against the imposition of a lengthy Conditional Release Order pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act. 3. The prosecutor understandably was opposed to such an Order being made. He reiterated the serious nature of the supply of a prohibited drug to young persons, conceding that the offender had good prospects of rehabilitation and was unlikely to reoffend. However, he submits that the matter is too serious for non-conviction. 4. Further, he submits that the court must be careful not to disregard the purposes of sentencing. 5. Finally, he said that the community would want to see a conviction recorded for this type of offending. 6. In response, Mr Bhutani submits that the community can be protected by the imposition of a conditional release order, attaching conditions as to treatment and compliance. He notes the finding of a causal connection between the mental health issues and the offending conduct; the attenuation of moral culpability; and the remorse of the defendant. Consideration 1. In dealing with the offender's mental health issues, namely Bipolar disorder and Polysubstance Misuse Disorder, I have regard to what McClellan CJ at CL said in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 said at [177]-[178]: [177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]. 1. I note that the decision of De La Rosa is not a guideline judgment but provides a helpful summary of legal principles concerning offenders with mental conditions. 2. In relation to the first point in [177] of that case, I found when dealing with the defendant's mental health diversion application that there is a causal link between the offender's mental health condition and the offending. It has been accepted previously that the offender's ingestion of cannabis has led to manic behaviour. There is no reason to doubt that the offender smoked cannabis in the days leading up to the offending conduct. The facts confirm her ingestion of the drug at the time of offending. 3. I am somewhat troubled by the fact that the offender knew that she was manic but did nothing about it. I accept that it is possible that the defendant was aware but could not do something about it. She only did something about it after receiving the letter and being escorted from the school. It is also somewhat curious that the offender pleaded her case to the psychiatrist – telling Dr Grace she was hypomanic, and telling Dr Samuels that she believed her judgment was significantly impaired and that she would not have acted in this way under normal circumstances. 4. It is also of concern that the offender was using illicit drugs again despite the impact on her mental health on previous occasions. 5. The offender's varying accounts as to the duration of excessive drinking, when it ceased, when she became abstinent from alcohol, and when she became abstinent from cannabis lead me to conclude that Ms Russell is not an accurate historian. 6. Nevertheless, I am satisfied that the need for general deterrence is ameliorated to some degree, but by no means entirely. As submitted by the prosecutor, and acknowledge earlier by counsel for the offender, the offending is serious. 7. General deterrence still has some role to play. However, this is not the case of a teacher without mental health issues supplying the drug to a student. Had that been the case, any sentence other than one involving a conviction would seem inappropriate. 8. I am satisfied that the offender's moral culpability is somewhat diminished, however not to a significant extent. The offender is well aware of the impact of illicit drug use on her existing bipolar condition, the need to take medication and the need to consult with a psychiatrist, or at the very least, her general practitioner. 9. Specific deterrence has a lesser role to play, and is to dissuade Ms Russell from using illicit drugs and drinking to excess due to the risk of becoming manic and the potential to commit an offence. Mere possession of an illicit drug is an offence, let alone consuming the drug. Specific deterrence remains relevant, because of the factors that I referred to when discussing reduced moral culpability. 10. The offender has taken positive steps towards restoring her mental health since receiving the letter from her principal and subsequent arrest. Her medication has been adjusted. She is seeing a psychiatrist and an addiction and trauma specialist and forensic mental health expert. Treatment plans have been prepared. Ms Russell has been compliant since re-engaging with her medical specialists. I find that she has good prospects of rehabilitation, noting that her mental health issues concerning bipolar disorder are being managed but will never go away. Her polysubstance misuse condition is being managed. 11. The psychiatric opinion is that if Ms Russell complies with her treatment regime, she is unlikely to reoffend. I have no reason to doubt that. 12. The offender's likely loss of ability to teach again is a consequence of her offending associated with her employment. It is not extra curial punishment. 13. However, I can still take into account her personal circumstances which include the likelihood of never teaching again at a school. 14. Factually, the offender is charged with a single offence of supplying a prohibited drug to one student. The charge is pursuant to section 25(1) and not section 25(1A). Therefore the age of the child is a statutory aggravating factor pursuant to section 21A(2)(ea), as is the abuse of a position of trust or authority pursuant to section 21A(2)k) of the Act. 15. There is no evidence of planning. The offender sourced the drug for herself, prior to her decision to contact the child. 16. The quantity supplied was undisputedly small – sufficient to be shared by three persons in a home-made bong. 17. To her credit Ms Russell has begun retraining. She has positive support from her husband and is thought of well by those that know her, as evidenced by documents in the diversionary application tender bundle. I accept that she is remorseful. 18. There is reference in that tender bundle to the attention given to the offender by press and photographers, and the adverse impact on relationships by her offending conduct. The offences were discovered by a video of the defendant smoking cannabis was put on social media. 19. I have had regard to the legislative provisions pursuant to section 10 Crimes (Sentencing Procedure) Act, and in particular s 10(3). These include the offender's prior good character, lack of any criminal antecedents, age, and mental health issues. 20. The offending conduct is by no means trivial, however that consideration is merely one that need be considered. An offence that is not trivial may still be dealt with under this section. 21. Despite the serious example of offending by a person in authority, I am of the view that the relevant purposes of sentencing pursuant to section 3A Crimes (Sentencing Procedure) Act can be adequately reflected by the imposition of a non-conviction with a 2 year Conditional Release Order pursuant to section 9(1)(b) of the Act. The community is protected. There is a reduced aspect of both general and specific deterrence. There is less of a need to denounce the offender's conduct. The court has had regard to promoting the rehabilitation of the offender. These are all purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act. 22. The prosecutor made reference to community expectations. I have no doubt that some people not aware of all the facts and circumstances, the extent of mental health issues, the small quantity of the drug supplied and the causal connection between the offender's bipolar condition, polysubstance misuse condition and the offending, and who may have some or little understanding of sentencing principles, would expect a stern sentence. 23. I am not however sitting in a court of public opinion. I am bound by my judicial oath. 24. I deem it inexpedient to record a conviction and discharge Lauren Russell under a conditional release order for a period of 2 years with conditions that she: 1. is supervised by Community Corrections; 2. abstains from illicit drug use 3. complies with the Treatment Plan set out in paragraph 120 of the report of psychiatrist Dr Samuels, in conjunction with the Treatment Plan on the final 2 pages of the report by psychiatrist Dr Grace. ********** 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: 30 January 2023