New South Wales District Court CITATION: EWART, Warren James v R [2009] NSWDC 403 JUDGMENT DATE: 18 November 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: I adjourn the proceedings pursuant to s 32(2) of the Mental Health (Forensic Provisions) Act 1990. CATCHWORDS: CRIMINAL LAW - sentence appeal - driving whilst disqualified - significant relevant prior record - pre-sentence report noting unsuitable for Community Service Order or Periodic Detention Order - psychiatric report diagnosing major depressive disorder - application pursuant to s 32 Mental Health (Forensic Provisions) Act 1990 - diversion from criminal justice system to mental health system - purposes of sentencing Crimes (Sentencing Procedure) Act 1999 s 3A LEGISLATION CITED: Mental Health (Forensic Provisions) Act 1990 s 32 Road Transport (Driver Licensing) Act 1998 s 25A(1)(a) CASES CITED: DPP v El Mawas (2006) 66 NSWLR 93 PARTIES: Regina Warren James Ewart FILE NUMBER(S): 2009/47494; 2009/155247 SOLICITORS: Mr Lee (NSW Office of the Director of Public Prosecutions) Ms Cashman JUDGMENT 1. Warren James Ewart was sentenced by a magistrate of the Local Court at Bankstown to imprisonment. This sentence occurred on 22 September 2009. In fact he received three prison sentences because he was convicted of three offences. He has appealed to the District Court against those sentences. 2. The offences he committed which caused the magistrate to send him to prison were three offences of the same kind; each was driving a car whilst disqualified. Each of those is made into an offence by the Road Transport (Driver Licensing) Act 1998 s 25A(1)(a). They carry a maximum of eighteen months imprisonment or two years imprisonment, depending I expect on whether or not it is a first offence. 3. The magistrate sentenced Mr Ewart to one month imprisonment for the first offence and for two months imprisonment for the second offence, which was completely cumulative on the first sentence, and to three months imprisonment for the third offence, which was completely cumulative on the second sentence. Hence he received an overall penalty of six months imprisonment. 4. When a person appeals to the District Court from a sentence imposed by the Local Court the District Court does not look for any error made by the magistrate but sentences the person afresh. 5. In this case I can understand why the magistrate sentenced Mr Ewart to imprisonment. The three offences of driving whilst disqualified were committed only some months apart, the first on 14 March 2009, the second on 27 April 2009 and the third on 4 June 2009. Not only that but Mr Ewart had a traffic record which included a significant number of offences of driving whilst unlicensed; he had received fines and disqualifications in the past for those offences. 6. What the magistrate was confronted with was a person not only with a bad record for driving whilst unlicensed but who then disregarded the court orders or legislative disqualification and drove on three occasions despite that disqualification. Each occasion was unremarkable in itself except on the first occasion he was speeding up to twenty kilometres per hour over the speed limit. On the last occasion when he was confronted by the police after driving to work he said to the police "What I am supposed to do? I have to get to work." That does not indicate a very co-operative understanding of what he was doing. 7. A pre-sentence report prepared for Mr Ewart thinks that he is unlikely to require supervision but would be unsuitable for either a Community Service Order or a Periodic Detention Order. 8. Ms Cashman, who appears for Mr Ewart today, has tendered into evidence a significant document. That document is a medical report from a well regarded psychiatric, Dr Stephen Allnutt. Dr Allnutt diagnosed Mr Ewart as having a depressive condition. His symptoms were consistent with a major depressive disorder. 9. Dr Allnutt's history was consistent with the onset of the depression being brought about by the breakdown of an eighteen year relationship with a former partner, and connected with false accusations of sexual abuse against his children in the context of an acrimonious marital break-up. In addition, he lost assets and his business. As Dr Allnutt observed these "would be regarded in anybody's life as significant stressors". 10. Ms Cashman makes the link between that history of the depressive symptoms commencing in 2006 with her client's criminal history. Although he emigrated from New Zealand to Australia in 1998 and we have no criminal history before then, the criminal history in this State does not commence until 2007. After that there are consistent and frequent offences which I have already referred to. That is consistent with the significant change in Mr Ewart's life which occurred in 2006. 11. In addition, a neighbour who provided a reference, Ms Roshen Bayhe, who described herself as a health professional, noticed after the separation and false accusations that Mr Ewart had become "more withdrawn and depressed". She went on to refer to a period of custody served by Mr Ewart related to the accusations which did not proceed. 12. Based upon Dr Allnutt's report, Ms Cashman asks me to exercise the discretion vested in a magistrate under s 32 of the Mental Health (Forensic Provisions) Act 1990. She has supported that application by reference to the authorities, including DPP v El Mawas (2006) 66 NSWLR 93. The Chief Justice and Handley JA both agreed with the judgment of McColl JA. Her Honour described this provision as requiring, or at least this part of Act as requiring the magistrate "to balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental condition" referred to in the Act. 13 Ms Cashman described the course which she is asking me to take as one involving the diversion of her client from the criminal justice system to the health system. That description was also embraced by McColl JA at 108 ([72]) of her judgment where her Honour said that the part is "clearly intended to permit the magistrate, if appropriate, to divert a defendant from being exposed to sentence, with his or her mental condition being taken into account at that comparatively late stage." Ms Cashman also pointed out that he was unrepresented on many occasions in the past when he was fined for previous driving offences. Her client has apparently sold his car and is now in a new relationship. 14. Mr Lee, who appears for the respondent Director of Public Prosecutions, acknowledges that an adjournment under s 32(2) would be appropriate but not a dismissal of the charge under subs (3) which would not meet the expectations of the community regarding punishment of the offender. 15. Ms Cashman's argument is that a couple of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 would be met by an order adjourning these proceedings: one would be the rehabilitation of her client, and the other the protection of the community by diverting him to the health system to manage his condition. He is presently taking antidepressants but has been taking them only for about a week. 16. I propose to accept Ms Cashman's submission regarding the subs (2) diversion but not the subs (3) dismissal. In accordance with s 32(1)(a) and based upon Dr Allnutt's report where he says that he would regard Mr Ewart as suffering from a mental illness in accordance with s 32, I too regard Mr Ewart as suffering from a mental illness and I regard him as suffering from it as well at the time of the offences. I do not regard him as a mentally ill person. 17. Given the facts of the offences which are part of the evidence and the evidence from Dr Allnutt and Ms Bayhe, I regard it as more appropriate to deal with Mr Ewart in accordance with the provisions of Pt 3 of the Mental Health (Forensic Provisions) Act 1990 than otherwise in accordance with law, and I propose to adjourn the proceedings and grant Mr Ewart bail. Accordingly, in accordance with s 32(2), I adjourn these proceedings to Friday, 5 March 2010 before me at Parramatta. Is that a suitable date? CASHMAN: Yes, your Honour. HIS HONOUR: Mr Lee? LEE: Yes, your Honour. 18. I grant Mr Ewart conditional bail in accordance with the Bail Act 1978. Now what should the conditions be. Good behaviour, one. CASHMAN: Good behaviour, yes. HIS HONOUR: Two? CASHMAN: To notify the court of any change of address. HIS HONOUR: Yes, change of address. CASHMAN: To follow the treatment plan as set out by Dr Allnutt. He's got a copy of that-- HIS HONOUR: Yes, so no supervision-- CASHMAN: He's got a copy of that report and my client's obviously got the support of his partner, it's part of your Honour's decision - final decision's up to my client to make sure that's being implemented. HIS HONOUR: Yes. And there's no Probation and Parole Service because they say "not supervision", so it's really up to Mr Ewart and his partner to make sure he continues with that treatment plan, that's the object of the exercise. CASHMAN: Yes, and there will have to be some evidence I would imagine of that finally-- HIS HONOUR: I would think so-- CASHMAN: --before your Honour makes your ultimate decision. You have indicated to my client where you're going but it's up to him ultimately to put those plans in place and show the court he can-- HIS HONOUR: Do you agree, Mr Lee? LEE: Yes, certainly, your Honour. 19. The conditions of bail are: 1. That he be of good behaviour. 2. That he notify the registrar of this court of any change in his residential address. 3. That he comply with the treatment plan outlined by Dr Allnutt on p 6 of his report dated 11 November 2009. 20. Mr Ewart, you have heard what I have said. I am going to adjourn your case for the reasons that I said. You are on bail so you are going to have fill out a form. There are three conditions to that bail, two formal ones. One is to be of good behaviour, no more driving without your licence or - you are not allowed to commit any offences. Secondly, you tell the court if you change your address; you write to them. But the third and most important one is to get yourself onto this plan that Dr Allnutt has helpfully set out and which you have already started. And then you come back to me on 5 March next year and we will see how you are going and if you are going well then I expect that I would probably dismiss the charge or discharge you unconditionally. We will see. We will see what the appropriate course is at that stage, what your lawyer says and what the prosecution lawyers say, but if you have done well under the plan then your chances are much improved. Do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: Okay. Have a seat. Ms Cashman it would be appropriate to have some evidence of what has happened next time. CASHMAN: Yes. HIS HONOUR: I will direct that a transcript of today's proceedings be prepared including my judgment and made available to the parties and to me on or before Friday, 26 February 2010. And will ask my associate just to make a note of that date and chase it up if it hasn't turned up. The exhibits and the other papers I will give to my associate to keep on the file. I better put in the diary that - all right. Is there anything else that I need to attend to? ADJOURNED TO FRIDAY 5 MARCH 2010 ********** 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.