New South Wales District Court CITATION: R v Hayden John Newman [2006] NSWDC 14 HEARING DATE(S): 17/07/06 JUDGMENT DATE: 18 July 2006 JUDGMENT OF: Nicholson SC DCJ DECISION: Application refused. CATCHWORDS: Application pursuant s10(4) Mental Health (Criminal Procedure) Act 1990 – inappropriate to inflict any punishment - assumptions under pinning application – role of deterrence other matters the Court thinks proper to consider – remand custody. LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 – s 10(4); s32 CASES CITED: Director of Public Prosecution v Mills [2000] NSWCCA 236 Director of Public Prosecution v Sami El Mawas [2006] NSWCA154 PARTIES: Regina Hayden John Newman (Accused) FILE NUMBER(S): 06/11/0076 COUNSEL: Mr A McCarthy (Crown) T Evers (Accused/Applicant) SOLICITORS: Solicitor for Public Prosecutions Legal Aid Commission APPEAL PENDING JUDGMENT 1 HIS HONOUR: The Crown alleges that, on 22 June 2004, Haydon John Newman, then aged twenty-seven, attended his old school, Asquith Boys High School, where he assaulted two administrative staff members and the principal. The Crown alleges the following day he returned to the school, and with malice wounded one of the staff members. I shall return to the circumstances in which each of the alleged offences is said to have occurred. 2 Mr Newman has been charged in connection with each of these alleged assaults, although one of them was expressly charged as a malicious wounding. A question arises as to whether he is unfit to be tried. That issue has been set down for hearing before me. 3 Prior to the hearing commencing, his counsel, Miss Evers, applies for the charges to be dismissed pursuant to s 10(4) of the Mental Health (Criminal Procedure) Act 1990. That section provides: "If in respect of a person charged with an offence the court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released." 4 The Court's task is to determine whether it is inappropriate to inflict any punishment. If it is inappropriate to inflict any punishment then the Court has a discretion as to whether it will dismiss the charge. If the Court finds it is not inappropriate to inflict any punishment then the Court must continue to hear the question of whether the accused is unfit to be tried. Need for Reform 5 In the Director of Public Prosecutions v Mills [2000] NSWCCA 236 Meagher JA (in the minority) observed that the section was in drastic need of reform. The problem with the section is that it requires a number of assumptions to be made that are not clearly delineated or defined. For example, in New South Wales any proved offence may attract a range of unappealable sentences. Do the words "inappropriate to inflict any punishment" require the tribunal to approach this task applying an objective standard that would embrace the sentencing range applying to all judicial officers, or a subjective standard covering the sentencing practises of the particular judge determining the application? 6 Since the outcome of this particular fitness hearing may be a jury question, is the judge determining the application to apply his or her view as to whether the applicant is unfit to be tried, or to apply the presumption of sanity? In this case the issue is to be determined by me, but in circumstances where one psychiatrist's opinion is that the applicant is fit to be tried while the other opines he is unfit to be tried. 7 Assuming that the applicant is unfit to be tried, it will take qualified experts to assess whether he will be fit to be tried in twelve months. What assumption am I to make in determining this application; that he will be fit or unfit to be tried now or that he will be fit or unfit to be tried in twelve months from now? 8 As Meagher J.A observed, no one can punish because of the nature of the charge. It is the conviction, or a finding on the limited evidence that the offence was committed that results in punishment. Yet, the whole purpose of the sections relating to unfitness to be tried and limited hearings, is about giving accused persons who were mentally ill the opportunity to establish their innocence. 9 In this case the circumstances of the offence are bizarre. I cannot rule out the possibility of a verdict of not guilty by reason of mental illness. Yet, of course, the custody that would come about as a result of an application of s 39 of the Mental Health (Criminal Proceedings) Act 1990 is not regarded as punishment; see the DPP v Mills ante, para (38). 10 I have read the psychiatric reports tendered on the application, which I anticipate will also be tendered on the unfitness hearing should it go ahead. I have not yet heard the oral evidence of the psychiatrists. My view is a finding of unfitness to be tried is well open. That may cause a delay in excess of another twelve months. Is that a matter that I should take into account or not in determining the outcome of the s 10(4) application? 11 While I have accepted that any order under s 39 is not punishment I have accepted that any other finding at the trial or hearing would require consideration of punishment, for example a limiting term; see DPP v Mills [2000] NSW CCA 236 at [38]. 12 I have difficulty understanding how I apply s 10(4) if I came to a view the probable outcome at any hearing on the merits of the charge, whether a limited hearing or otherwise, would result in a verdict of not guilty by reason of mental illness because the question of punishment would not thereafter be a consideration. That would be because the nature of the person's disability (one of the matters I am required to consider) would result in the absence of any criminal liability at all. I have already noted such a verdict seems a distinct possibility in this case. 13 In the two years since these alleged offences, the applicant has spent seventeen months in protective custody. When determining the question of whether it is inappropriate to inflict punishment what is the point in time crucial to the determination; the time at which the offence occurred, the probable time at which the sentence may be imposed, or the time at which the application is made? In this case I have opted for the last of those three options. 14 Questions of deterrence are more difficult to determine. I understand if I find the applicant fit to be tried the applicant may plead guilty. The approach to deterrence may differ. If he were fit to be tried, and knew the nature and quality of his acts, and knew that what he was doing was wrong, deterrence may have some more vigorous role to play than if the circumstances were otherwise. The Crown Case 15 The Crown case is that at 2 o'clock on 22 June, a Tuesday, the applicant attended the administration offices at Asquith Boys High School. On entering that office he approached the cash register section where Joan Wilson was sitting at a front desk. Another lady, Rhonda Christie, was also inside the office. The office is partitioned from the general public by a large double sliding glass window. One of these was open at the time. 16 The applicant ignored inquiries from Ms Wilson as to why he was in the office or what he wanted. Using his body weight and both open palms he struck the closed portion of the sliding window. That caused the window to shatter towards Wilson and Christie. He continued to smash both sides of the window until the frame was completely empty of glass. 17 The Crown case continues that whilst in the process of smashing the window the applicant took a shard of broken glass, aimed at Miss Wilson, and threw it. She ducked behind her desk to avoid being struck. Miss Christie also took cover behind the same desk in fear of her safety. 18 The applicant, whilst throwing and smashing the glass, was yelling "I want the fucking principal. Where's the fucking principal. I want Mr Bonnor." Mr Bonnor had been principal, but was no longer principal at Asquith Boys High School. He had taken, as it turns out, a more senior role in the Department. The current school principal, a Mr David Short, hearing from his own office the applicant yelling and smashing glass came into the general office. He was immediately approached by the applicant who grabbed him on both shoulders and began to push the principal backwards into his office. All the time he was yelling "Who are you? I want Mr Bonnor." The applicant began to kick Short on both legs. The principal was unable to free himself but two members of staff came to his assistance and restrained the applicant until Police arrived. 19 The applicant was bleeding from injuries he had received to his hands and forehead as a result of smashing the glass. He was handcuffed and conveyed to Hornsby Hospital where he was scheduled under the Mental Health Act 1990. He was in fact assessed by the mental health team at the hospital and admitted to the Lindsay Madew Psychiatric Unit under a s 22 Mental Health Act Order. Later that day he absconded from the psychiatric unit. 20 The following morning at about 11.40 he was back at the administration office at Asquith Boys' High School. The applicant was holding a piece of terracotta piping in both hands above his head. He was approached by the deputy principal, a Mr Collins, who had recognised him from the previous day. Collins said to him "You, stop there." The applicant continued to walk towards Collins who attempted to restrain the applicant. The applicant then took a piece of terracotta piping and struck Collins to the rear of his head causing a laceration that bled profusely. This is the wound the Crown relies upon. 21 During the struggle the applicant dropped one of the pieces of terracotta piping on the stairs then picked up Collins and carried him to the administrative office area; for what purpose is unclear on these set of facts. Collins also sustained a graze to his forehead. Other members of staff came to Collins' rescue and restrained the applicant until Police arrived. 22 Miss Evers, who appears for the applicant, has indicated that the portion of s 10(4) upon which I should focus my attention when determining this application is the issue of whether it is inappropriate, having regard to "any other matters which the Court thinks proper to consider" to inflict any punishment. Chronology 23 The agreed chronology is that the applicant was charged with these offences and, it seems to me, some others, particularly malicious damage to the glass on 23 June 2004. He was thereafter kept in custody until 11 November 2005. Once removed from Police custody the balance of that custody, it seems, was on protection. Protection custody required him to be housed in his cell most days twenty-three hours per day. 24 On 24 August 2004 he was committed for trial. On 17 September 2004 he was arraigned. On 2 December 2004 a direction by the Attorney General was given for a fitness hearing. On 7 February 2005 a jury made a finding that he was unfit to be tried. On 18 April 2005 the Mental Health Review Tribunal found that on the balance of probabilities he would not become fit to be tried within a period of twelve months. On 27 May 2005 a direction for a special hearing was made. 25 On its surface thus far things were proceeding smoothly. However on 1 August 2005 the special hearing was vacated because it was accepted that the fitness hearing had been a nullity. On 12 October 2005 a fresh fitness hearing was directed by the Solicitor General. On 18 November 2005 the applicant was released on bail. EVERS: Your Honour I don't mean to interrupt. There is just a very minor correction that needs to be made. The special hearing was vacated on 1 August because I had just come into the matter and there was need of further psychiatric material, an updated material. It was vacated and it was following its vacation that it was ascertained that it was the wrong charge. So just strictly for accuracy's sake it wasn't actually ascertained as at 1 August, it was ascertained soon after that that it was the wrong charges and hence the new direction. It's just that I was involved ..(not transcribable).. HIS HONOUR: All right well that, those submissions will be obviously incorporated into the judgment so that those, in another place may see them. Time on Bail Used Productively 26 Thus the delay presently existing does not fall at the foot of the applicant. He had been in custody, on protection as I said, for twenty-three hours per day for seventeen months. His bail conditions required him to accept directions and supervision from one Ingrid Kalnins of the Department of Aging, Disability and Home Care. 27 A report of Miss Kalnins is before the court. It indicates strong, positive steps have been taken towards the applicant's rehabilitation, including graduating to independent living within the community. She writes in her report that to the best of her knowledge the applicant has been of good behaviour and has not displayed any antisocial behaviour whilst on bail. It is her opinion that despite the applicant's [limited] intellectual ability he has the capacity to understand that the actions he took to resolve his personal grievance were not socially appropriate. 28 She has noticed a marked difference in the applicant's attitude post gaol. He now shows keen interest in relearning independent living skills; he has accepted her supervision and direction to his full capabilities; he has been co-operative with all suggested means of reintegrating himself into the community. The applicant has been receiving visits and/or phone calls and faxes from Miss Kalnins to discuss key areas of community living such as housing, employment and social/recreational pursuits. He has on occasions self-initiated phone calls to her when he felt the need for clarification or perhaps even encouragement. 29 The applicant has been receiving counselling and/or phone calls with an intern psychologist, one Ms Pike, who is working with the Department of Aging, Disabilities and Home Care. That counselling has focussed on working on issues of anxiety, anger management and strategies of what he is to do when he is stressed. To the date of this report the applicant had received nine individual counselling sessions; seven of those had addressed issues of problem solving and anger management while two had focussed on issues relating to work. 30 The applicant and his mother had attended an open day at the Epilepsy Association. I should interpolate that the applicant suffers from epilepsy, and I will come to that more fully in a moment. It was felt by Miss Kalnins that linking the applicant with the Epilepsy Association would integrate him into social and support groups which would be beneficial to his understanding of his, epilepsy hopefully make him feel less socially isolated and more confident regarding his capacity to live with epilepsy. 31 The applicant had been to several appointments with the Department of Housing, firstly to obtain a rent start application. He was successful in obtaining payment of the bond and two weeks rent in advance. He had viewed a bed-sitter at Marsfield with the Ryde Hunters Hill Community Housing Co-Operative. Once the applicant decided he wanted to reside at that location he signed a lease, picked up the keys and, with his mother's assistance, relocated from her residence to this new housing. This was of course an important step for him in independent living. The applicant, with assistance from Miss Kalnins and his mother, had organised the electricity and phone bills to be placed in his name. 32 Miss Kalnins had put together a travel folder of bus routes and timetables from the bed-sitter to the Macquarie Shopping Centre to the nearest train station at Epping and to potential work placement at New Horizons as well as train routes and timetables from Epping Station to Hornsby. The aim of all this had been to familiarise the applicant with his new suburb and to show him that the support networks were relatively close together. He had previously been living with his mother at Hornsby Heights so that travelling to Hornsby would enable him to maintain contact with his mother. 33 With minimal prompting, the applicant proved able independently to catch public transport once he became familiar with the bus numbers, the route and appropriate bus stops. He now is also able to catch a train and then a bus to his mother's residence. 34 The applicant was proactive in stating that he would like an employment or vocational placement for three days a week. Efforts were made to settle the applicant in an employment workshop, but the applicant perceived himself as not having a disability, and was seeking employment options outside a sheltered workshop environment. The report says that the applicant has been proactive in searching the careers sections of newspapers for potential employment options and, more recently, had or was to pursue an application for lawn mowing or part of the garden crew by the House With No Steps, which is a non-Government disability service provider. I do not know how that has gone but I understand that or has contacted them regarding employment. 35 The point to be made from all that is that he is proactive in looking for employment, which is a fairly difficult thing for somebody in his situation to find. 36 So far as hobbies are concerned he has been participating in a Saturday soccer team in Five Dock. His counsellor with the Department has given him a number of college brochures and identified sports courses which may be available to him in the local community colleges. 37 Miss Kalnins says she will continue, as his case manager to support and assist the applicant to achieve meaningful daily living goals in his life. She would continue to provide service until such time as the applicant displayed a confidence in his ability to manage himself independently and he was satisfactorily linked with appropriate services external to the Department of Aging, Disability and Home Care; for example, non-Government service providers who are able to oversee and assist him in his efforts to live independently. Other Matters 38 The applicant, as I said, suffers from epilepsy and has done so since birth. The form of epilepsy is said to be symptomatic generalised epilepsy with a slow spike wave syndrome. The applicant has frequent seizures, in fact they are described as very frequent seizures, most of them subclinical as shown by a prolonged EEG. The applicant's difficulty is that he is medicine sensitive; in particular he is extremely sensitive to the side-effects of the various medications. Further, he develops resistance very rapidly to anti-convulsants. There is, it would seem, some link between his seizures and his mood and behaviour disorders. It may well be that there are also separate psychiatric issues. 39 Other matters that Miss Evers has invited me to consider were the motivators or stressors impacting upon the applicant at the time he undoubtedly entered Asquith Boys' High School on 22 June. These included episodes of bullying at that school when he was a student. The precise nature of the bullying at the school, whether physical, psychological or both, has not been spelled out with any precision. When it commenced, its duration and what knowledge, if any, the school had of it is unclear from the evidence. I am prepared to accept that bullying of some form occurred at the school and that the applicant was harbouring resentment in respect of this at the time he went to the school in June of 2004. 40 There are also two episodes of sexual assault alleged by fifteen or sixteen year old boys, I am assuming - the applicant describes them as boys, and the episodes occurred in a toilet block on two different occasions, although the form of the sexual assault, other than its homosexual content is not identified. Nor is it clear whether there is any link between the alleged perpetrators of the alleged assault and the alleged school bullies. Defence Arguments 41 Although outside his area of expertise, Dr Olav Nielssen ventured this argument regarding the application under s 10(4). I do not regard what the doctor has said here as an expert opinion. "In my view the community would not be served by persisting with the prosecution of Mr Newman as the money could be better spent on services for people with intellectual disabilities and because almost any outcome from further prosecution would not significantly improve the safety of the community. Moreover I believe Mr Newman should not be held morally responsible for his actions because of the nature of his disability and his confused state of mind at the time of the alleged offences." No doubt Miss Evers adopts the argument advanced by Dr Nielssen. 42 In a no bill application to the Director of Public Prosecutions on 6 December 2005 the Intellectual Disability Rights Service made the following points: that it was not in the public interest that the matter be prosecuted; that the applicant had been assessed with having a mild intellectual disability which was the equivalent of giving him a mental age of nine to twelve; the applicant experienced unstable epilepsy and a complex psychotic illness which also significantly impacted on his thinking and communication abilities; that the applicant lacked the capacity to appreciate the wrongfulness of his alleged actions. Then a series of other propositions: * that the injuries sustained by the alleged victims were minor; * that the amount of time spent on remand and the likely sentence was said to be over eighteen months - on my calculation it is seventeen but I am not quibbling over that; * that the circumstances leading to the alleged incident and the connection between the applicant's disabilities and the alleged offence was clear; * that the applicant had good prospects of rehabilitation and that he lacked previous convictions. There were a number of s 10 bonds that had been given to him of twelve month duration. Those bonds had all expired, although only by a short time, at the time of this alleged offence; * that at the time of these offences he had an intellectual disability and an untreated psychotic illness; * that the degree of culpability in connection with the alleged offences was towards the lower end because of his reduced understanding of the criminality of his conduct. 43 It was submitted that the offences were trivial - that may be unfair to the author. The heading is "The Seriousness or Triviality of the Offences". It was argued that Mr Collins had sustained a cut to the back of his head which required one stitch. He sustained a red mark to his forehead. They appear to be the only [physical] injuries which occurred. It leaves open, of course, the question of whether he suffered any trauma as a consequence of the injury. It was also argued that there were available an efficacious number of alternatives to the prosecution. The theme of Miss Evers' submissions has picked up many of those submissions initially made to the Director of Public Prosecutions. Determination 44 On indictment each of the three assaults carries a maximum of two years imprisonment. The maliciously wound carries a maximum of seven years imprisonment. From the statement of facts the assault upon Miss Wilson involved throwing shards of glass or a shard of glass at her. The potential for injury was real; hence, the fear and apprehension engendered by the assault was of a high order. True the assault was not accompanied by any battery. Nonetheless the situation, if proved as alleged, would have been terrifying for her. It was gratuitous, and unprovoked in any way by the victim. The same can be said of the assaults upon Short and Collins. 45 The wounding of Collins occurred by use of an implement, namely a broken terracotta tile of some sort. The use of an object aggravates the seriousness of this offence. A repeat visit to the school was used to effect this assault. While I doubt that the assault was planned, it would be open to find on the evidence that there was an intention to extract retribution in some form or other upon the school or members of the school community for the perceived wrong done to him. 46 In my view these offences would call for punishment in the event that the applicant was found guilty of them, or in the event that the applicant was found, on the limited evidence, to have committed the offences. 47 It should be noted I have considered the offences collectively when determining the issue of punishment. Frequently of course an accused person may be found not guilty of some charges and guilty of others. Indeed on the evidence before me the case against him in respect of the assault on Rhonda Christie does not appear as strong as the case he may have to answer against Joan Wilson. 48 In determining the question of whether it is inappropriate to inflict any punishment, I am conscious the question is to be answered in respect of one offence only. However, the answer to the question nonetheless requires regard to the total potential criminality alleged against the applicant. If the applicant stood charged with one assault only, say that of Miss Christie, the answer as to whether it was inappropriate to inflict punishment for that offence may well be different than the situation the applicant faces. Currently that offence sits in an indictment alleging two other assaults on the same day and a further assault with wounding on the following day. The assault of Miss Christie is likely to be viewed more gravely in that latter context. 49 In answering the question of whether it is inappropriate to inflict any punishment on the applicant in respect of any of the charges on the indictment I have taken the view of the evidence in respect of the offences most favourable to the Crown, although I trust it is a realistic view nonetheless. On the subjective matters I have taken a view most favourable to the applicant. 50 Again the interpretation of the section presents a problem. In the course of argument I expressed the view that upon a finding of guilt, or that on limited evidence the offence had been committed, the court would take into account any time served when turning to the question of sentence. It could do that for example by backdating a sentence, or by coming to a view that no further punishment was required. 51 It seems to me there is a difference between the proposition "it is inappropriate to inflict any punishment" and "it is inappropriate to inflict any further punishment". In this case there is a real likelihood open, on the evidence, of time served and rehabilitation progress thus far made, and assessing, as best one can, the objective criminality of the facts as contained in the summary of facts from which I have read that no further punishment would be imposed. Nonetheless there may be a conviction or a limited finding that the offence was committed. 52 Those findings, while adverse, may not qualify as "punishment" as meant in s 10(4). But the potential for adverse findings in respect of the four charges on the indictment, would yield the inescapable conclusion that it would not be inappropriate for the judge to inflict punishment in the light of those findings standing alone. It is only when one adds to those findings the subjective history of time served and rehabilitation that one comes to a view that no "further" punishment is required. 53 A finding is still open - even though I have expressed a view that in the light of the offender's current rehabilitation status, there is a real likelihood I would inflict no further punishment - that is, a finding that it is inescapable that it would not be inappropriate for the Court to inflict punishment even in the light of my findings. CROWN PROSECUTOR: Sorry your Honour, may I just address one matter before you go further. The offences are under s 60E so the penalties are five years, because it's assault on a school staff member. HIS HONOUR: I'm sorry, yes. CROWN PROSECUTOR: That's all right. That was where the, that happened last time. The penalty is five years in relation to the assault and 12 years in relation to the malicious wounding. HIS HONOUR: All right, thank you. CROWN PROSECUTOR: Under 60E. I just thought I'd, just for the record, I'd raise that. HIS HONOUR: I'd been regarding them as common assault but they are in fact offences under s 60E. CROWN PROSECUTOR: 60E, yes. HIS HONOUR: All right. 54 One only has to read the second reading speech of s 60E to understand the sense of gravity of the offence that parliament had when introducing those offences, and its desire to see staff at schools protected. 55 This morning my attention was drawn by Miss Evers to Director of Public Prosecutions v Sami El Mawas, a recent decision of the Court of Appeal [2006] NSWCA 154. It is a decision relating to s 32 Mental Health (Criminal Procedure) Act 1990. That is a section of the Act which is available in the Local Court exercising summary jurisdiction. I have already pointed out a difference which is that this Court, on indictment, is generally dealing with offences regarded as more serious than a magistrate dealing with matters summarily. 56 It seems to me that I have approached this case at least in the way in which one is required to approach s 32 as set out in the judgment of McCall JA in para (24) "In exercising the Pt 3 jurisdiction the magistrate is given powers of an inquisitorial or administrative nature to inform herself or himself as the Magistrate thinks fit s36. That power, which would clearly have to be exercised in accordance with procedural fairness requirements, demonstrates the breadth of the inquiry the magistrate is entitled to undertake in determining whether to send a defender along the diversionary route or leave him or her to be dealt with in accordance with law." 57 I go to para (71). "Pt 3 of the Act requires 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 mental conditions referred to in s 32(1) or mental illness (s 33) with the object of ensuring that the community is protected from the conduct of such persons". 58 There is this difference though between s 32 and s 10(4). Section 32 provides a magistrate may set conditions, and in the event that those conditions are not complied with, for the matter to come back before the magistrate. Section 10(4) has no such caveat. 59 In all the circumstances, I find that it would not be inappropriate for a judge to inflict punishment in the light of these findings. The application is refused. ****** - 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.