Local Court of New South Wales CITATION: Police v Deng [2008] NSWLC 2 JURISDICTION: Criminal PARTIES: Police Rose Deng FILE NUMBER: PLACE OF HEARING: Downing Centre DATE OF DECISION: 01/30/2008 MAGISTRATE: Magistrate I Barnett CATCHWORDS: Negligent driving occasioning death - Section 32 of the Mental Health (Criminal Procedure) Act 1990 LEGISLATION CITED: Road Transport (Safety and Traffic Management) Act 1999 Mental Health (Criminal Procedure) Act 1990 DPP –v- El Mawas (2006) 66 NSWLR 93 CASES CITED: Confos –v- DPP (2004) NSWSC 1159 Mantell –v- Molyneux (2006) 68 NSWLR 46 R-v-Israil (2002) NSWCCA 255 TEXTS CITED: REPRESENTATION: ORDERS: This matter is in the list today for my decision on an application pursuant to S.32 of the Mental Health (Criminal Procedure) Act 1990, which was heard before me on 18th December, 2007. The applicant Rose DENG has made an application to the Local Court pursuant to S.32 of the Mental Health (Criminal Procedure) Act 1990, in relation to a Court Attendance Notice taken out by NSW Police, for an alleged offence under the Road Transport (Safety and Traffic Management) Act 1999, Section 42(1)(a). The Court Attendance Notice alleges one offence of "negligent driving occasioning death" and says, "between 11:00 am and 11:02am on 27.3.2007 at Kogarah, did negligently drive a motor vehicle, to wit, motor car registered number VJ-1978 upon a road related are, to wit, the eastern footpath of Railway Parade." S.42 of the Road Transport (Safety and Traffic Management) Act 1999 is headed "Negligent, furious or reckless driving", and provides a series of graded penalties for offences provided for under the section. Relevantly S.42(1) provides – (1) A person must not drive a motor vehicle negligently on a road or road related area. Maximum penalty: (a) if the driving occasions death – 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or (b) if the driving occasions grievous bodily harm – 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or (c) if the driving does not occasion death or grievous bodily harm – 10 penalty units. The prosecution relating to the present application, is pursuant to S.42(1)(a) and is a "first offence" under that section. Offences created by S.42 are purely summary offences and, as such, are dealt with in the Local Court. Part 3 of the Mental Health (Criminal Procedure) Act 1990 is headed "Summary proceedings before a Magistrate relating to persons affected by mental disorders". The legislation then outlines the scheme that applies to such matters in the Local Court. S.31 deals with the application of Part 3 and says, inter alia "this part applies to criminal proceeding in respect of summary offences. . .being proceedings before a Magistrate. . ." Accordingly the present application is competent to be brought under this provision. S.32 is headed "Persons suffering from mental illness or condition" and provides (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) Developmentally disabled, or (ii) Suffering from mental illness, or (iii) Suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2)The Magistrate may do any one or more of the following; (a) adjourn the proceedings; (b) grant the defendant bail in accordance with the Bail Act 1978; (c) make any other order that the Magistrate considers appropriate. (3)The Magistrate may make an order dismissing the 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 of the defendant's mental condition or treatment or both; or (c) unconditionally. The hearing of the application, as I said proceeded on 18th December 2007. The applicant appeared and was represented by Mr Hoy of Counsel instructed by Jackson Smith Lawyers. Sgt Fordham a Police Prosecutor appeared on behalf of the NSW Police. A "tender bundle" was agreed to by both parties and was marked Exhibit 1 in the proceedings. This exhibit contains the following documents:- Tab 1 – a copy of the relevant court attendance notice. Tab 2 - the NSW Police facts sheet; a forensic survey plan of the area of the incident; a transcript of an ERISP interview held on 27.3.07 between police and Mr John Tittmarsh; a transcript of an ERISP interview held on 24.5.07 between police and Mr John Tittmarsh. Tab 3 – A report dated 17.12.07 from Julie Savage, Psychologist/Generalist Counsellor of the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS); a report dated 3.9.07 from Dr Bruce Westmore Forensic Psychiatrist. Tab 4 – A report dated 13.7.07 from Dr Andrew Pethebridge, Staff Specialist Psychiatrist, St George Hospital. Tab 5 – A report dated 15.8.07 again from Dr Pethebridge. Tab 6 – A report dated 9.10.07 from Dr Pethebridge. Tab 7 – A copy of clinical notes of Dr McPherson and a transcript thereof. Tab 8 – A letter from Dr McPherson dated 26.6.98 to STARTTS. Tab 9 – A letter from Dr McPherson dated 25.5.99 to the Department of Housing. Tab 10 – Clinical notes from the St George Hospital relating to the applicant's admission on 27.3.07. No further evidence was called, and submissions were made by the applicant's counsel and the police prosecutor. During submissions the applicant's counsel referred to the cases - - DPP –v- El Mawas (2006) 66 NSWLR 93; - Confos –v- DPP (2004) NSWSC 1159; - Mantell –v- Molyneux (2006) 68 NSWLR 46. It is relevant to note that in the case of El Mawas, McColl JA says, ". . . when one turns to S.32 it can be seen it requires the magistrate to make at least three decisions. The first is to determine, in accordance with S.32(1)(a) whether the defendant is eligible to be dealt with under that section. . . . The magistrate must next determine whether, having regard to the facts alleged in the proceedings or such other evidence as the magistrate may consider relevant. . .it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in a accordance with law. . . (and) once the magistrate has determined that it is more appropriate to deal with the defendant in accordance with S.32, the magistrate must determine which of the actions set out in subs (2) or subs (3) should be taken. . ." I will use these 3 points to structure my decision. 1. THE FIRST CONSIDERATION IS, IN ACCORDANCE WITH S.32(1)(a) IS THIS APPLICANT ELIGIBLE TO BE DEALT WITH UNDER THE SECTION There is an agreement by the parties that this applicant is so eligible. It seems this agreement is based on the various medical reports contained with Exhibit 1. I have already outlined the reports that are so included. I will deal in particular with the reports from Julie Savage Psychologist; Dr Pethebridge, and Dr Westmore. Dealing firstly with Ms Savage's report (Exhibit 1 @ tab 3) she says "Mrs Deng was first referred to STARTTS on 6.4.1998". And further that Mrs Deng had been assessed "as suffering from grief and trauma symptoms related to; The murder of her husband by armed men, which she and her children witnessed, and her own maltreatment as she attempted to prevent her husband's attackers from dragging him away to his death. The loss of many relatives in the war in Sudan. The loss of status and wealth, from her position in Sudan where her husband was a specialist doctor and she was a nurse. Her isolation in Australia from her own family and people, where she was only one of two members of her tribe in the Sydney Sudanese community at that time." Ms Savage's report also deals with the applicant's state of mental health following the motor vehicle accident and she reports: ". . . (Mrs Deng) has become inarticulate with grief. . .she speaks about the enormity of what she has done, in killing and injuring other people in the motor vehicle accident. . . .she finds it unthinkable that she, who was so affected for years by the persecution visited upon her and her family, has now become a persecutor, in creating such harm to others. . . Mrs Deng says that the pain is unbelievable, of causing death to another human being, and injury to others.. . She finds it almost unbearable, and if it were not for her children, she says that she would have killed herself. She often feels like she just wants to die." Dr Pethebridge's reports appear in Exhibit 1 at tabs 4, 5 and 6. In this report of 9.10.07 which is found at tab 6 the doctor says ". . .immediately following the motor vehicle accident Ms Deng was admitted to the St George Hospital Psychiatric Emergency Care Centre with symptoms of an Acute Stress Disorder, aggravated by an exacerbation of Post Traumatic Stress disorder (PTSD) relating to the life threatening circumstances of her life in the Sudan and escaping that country as a refugee. Following her discharge from inpatient care the Acute community Care Team, . . . have continued to treat Rose in the community. She continues to experience symptoms of depression and PTSD. . . .". Dr Westmore (Exhibit 1 @ tab 3) says ". . .I can advise you that (Mrs Deng) was suffering from post traumatic stress disorder on 27.3.07. Mrs Deng was suffering from a post traumatic stress disorder, a mental condition, prior to the accident. That is, it was a pre exisiting condition.. . .It is a mental condition. She was not however a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990. "She continues to suffer from a mental condition pursuant to Section 32 (1)(a) (i) and (ii) as noted earlier in this report and treatment for that condition is available in a hospital." In view of all of the medical evidence, I find that the applicant is eligible to be dealt with under the provisions of Section 32. 2. THE NEXT QUESTION IS WHETHER OR NOT, IT WOULD BE MORE APPROPRIATE TO DEAL WITH THE APPLICANT IN ACCORDANCE WITH THE PROVISIONS OF PART 3 OF THE ACT THAN OTHERWISE IN ACCORDANCE WITH LAW. In support of the application, the applicant's counsel made lengthy submissions going to this question. In doing so the applicant's counsel referred to McColl JA in the matter of ElMawas at paragraph 77 where McColl JA refers to Howie J in the case of Confos – I will quote part of that paragraph, "Howie J recognised that the second stage inquiry under S.32 required balancing the purposes of punishment and the public interest in diverting a mentally disordered offender from the criminal justice system. . ." The prosecution submitted that it would be inappropriate to deal with the matter under the provision of S.32. The prosecutor's submissions were succinct, to say the least, and were as follows: - that I should have regard to the horrific consequences of the incident; - I should have regard to the likely penalty, although the prosecutor conceded that there is "no suggestion a custodial sentence is warranted"; - The offence was not caused by the applicant's mental health issues; and - The public interest is against allowing matters of strict liability to be dealt with under S.32. As to this last point the applicant's counsel was quick to point out that an offence pursuant to S.42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 is not an offence of strict liability. It is an offence that requires the prosecution to prove, to the criminal standard of beyond a reasonable doubt, inter alia, that the applicant was negligent. I accept that this particular submission on the part of the prosecution is simply wrong in law, as it relates to this application. I will now deal with the point made by the prosecutor that "the offence was not caused by the applicant's mental health issues". This submission was essentially a bland statement alleging this as a fact. It is not the case that the application could fail because of this factor, if indeed it was the true position. S.32 (1)(a) makes it clear that the provisions can be applied if ". . .it appears to the magistrate . . .that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate). . ." suffering etc. What is clear from the evidence, is that the applicant had been suffering various mental health issues since 1994. In Dr McPherson's letter of 26.6.98 (Exhibit 1 @ tab 8) he says of the applicant "she does suffer from significant depression as well as post traumatic stress disorder consequent to her traumatic experiences in Africa. I suggest she would benefit from treatment . . .". The doctor then goes on to outline suggested medications etc. In his report of 3.9.07 (Exhibit 1 @ tab 3) Dr Westmore says, at page 2, "I asked her again what had happened and she said, 'I really don't know what happened, I don't know exactly what happened. I was driving for about one hour'.. . . .That admission (the doctor goes on, referring to the applicant's admission into St George Hospital immediately after the accident) appears to have been related to psychological/psychiatric problems and not to any physical injuries she sustained in the accident". Later in his report the doctor says (at Page 4) "I can advise you that she was suffering from post traumatic stress disorder on 27.3.07. Ms Deng was suffering from a post traumatic stress disorder, a mental condition, prior to the accident. That is, it was a pre existing condition. This is a recognised psychiatric condition and is described in some detail in the DSM – IV." In my view of the evidence, it is not clear to what extent the applicant's mental health problems played a role in the incident, and more than likely this issue will never be clear. I will now deal with the remaining two issues raised by the prosecutor, namely (1) that I should have regard to the horrific consequences of the incident; and (2) the likely penalty if found guilty. Both these matters must be taken into account in determining the application. The consequences of this incident were indeed horrific. Clearly apart from the victim mentioned in the court attendance notice a number of people were injured some very seriously. The facts (Exhibit 1 @ tab 2) indicate ". . .in total 12 pedestrians, including the deceased were struck by the Toyota as it drove along the footpath. . .one elderly pedestrian,. . .sustained a serious fracture to his leg which later required amputation. An 18 month old boy who was struck while being pushed by his mother in a stroller, sustained serious head injuries and a serious fracture to his left leg which required corrective surgery." I offer my condolences to all the victims and their families, and especially to the family of the deceased. You all may be assured that the consequences of this incident have been weighed heavily in coming to my decision. The other matter raised by the prosecutor relating to any likely penalty will be dealt with more expansively, a little later. I will now look at some of the issues surrounding, and relating to the alleged offence. Firstly it is important for me to note that I am not in any way determining guilt or innocence in relation to the alleged offence in dealing with this application. If this application is not successful then that issue will be determined on another occasion at a hearing. I have already dealt with the legislation and have noted that the section provides a series of graded penalties for the offence of negligent driving. The applicant's counsel submitted that the offence of negligent driving is at the lower end of the criminal spectrum, this is not contested by the prosecution, and in my view is correct. I have already noted that the offence is a purely summary offence, and as such must be heard and determined in the Local Court. It was also submitted, and it is not contested, that the applicant was a learner driver whose conduct throughout the time of driving was one of caution. In his statement to police on 27.3.07 (Exhibit 1 @ tab 2) Mr Tittmarsh, the driving instructor, indicated that he had previously taken the applicant out, in his car, to practice her driving; and that on this occasion the lesson had been in progress for about a half hour prior to the incident. At Q.42 he was asked ". . ..And as you were approaching the intersection, was there anything that concerned you about Rose's driving at that point. A. No, not at all. Not at all. If anything, a bit slow, but, yeah, that's fine with a learner. Cautious, maybe, but a learner, so she would be." The incident occurred as the applicant commenced to negotiate a left hand turn from Regent Street into Montgomery Street, Kogarah. In the same interview Mr Tittmarsh was asked at Q.19 . . ". . .can you tell us. . .what you can recall, what you can remember of that particular collision. A. . .I noticed that Rose was not turning tightly enough and was heading towards a stopped vehicle at a red light. I reached to try and pull the wheel to get the car to turn tighter when the car accelerated rapidly onto the footpath. I tried to steer the vehicle . . .away, but I couldn't because Rose had a tight grip on the wheel. I tried to reach across to turn the ignition off and couldn't reach there at this time." This was Mr Tittmarsh's first recorded account of the incident. Further at Q.55 he was asked "I'll just take you back then to the moment when you felt the need to correct her steering by grabbing the steering wheel. A. Mmm. Q.56 At that point was the vehicle accelerating or not? A. No, not now that I think of it. No." Throughout the two interviews Mr Tittmarsh was extensively questioned about his involvement, and about the vehicle's movements etc. There are some variances in his answers. This is not surprising given that the first interview was at 2.50pm on the day of the incident, and the second interview was not until 24th May 2007. I do not intend in this judgment to analyse all this statements. I simply make the point that clearly Mr Tittmarsh had taken over, or attempted to take over the steering of the vehicle. The question remains as to how much did Mr Tittmarsh's actions precipitate, if at all, the applicant's actions. I will now deal with the issue of likely penalty if the matter was dealt with at law. I have already mentioned that this is a "first offence" under the relevant section – the maximum penalty thus provided is 30 penalty units or imprisonment for 18 months or both. In relation to this issue the prosecutor simply said that I should have regard to the likely penalty – a statement with which I agree. The prosecutor also conceded that there is "no suggestion a custodial sentence is warranted". This concession obviously affects the options that would be open to any sentencing court. It is very relevant to look at the role general deterrence should play in a matter where the person being sentenced has a mental illness. In this regard I will quote from the NSW Judicial Commission's, Sentencing Bench Book at page 2106 where it states "general deterrence is attributed little weight in cases where the offender suffers from a mental condition or abnormality because such an offender is not an appropriate medium for making an example of to others." A number of cases are sited. Then at page 5574 discussion of the issue continues "Sentencing an offender who suffers from a mental disorder commonly calls for a 'sensitive discretionary decision'; R-v- Engert (1996) 84 A Crim R 67 at 67. This involves the application of the particular facts and circumstances of the case to the purposes of criminal punishment . . . the purposes overlap and often point in different directions. It is therefore erroneous in principle to approach sentencing, as Gleeson CJ put it in R-v-Engert at 68: 'as though automatic consequences follow from the presence or absence of particular factual circumstance. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise'." There is no doubt that any judicial officer set with the task of sentencing this applicant, should there be either a plea of guilty or a finding of guilt follow a hearing, would need to carefully take these issues into account in coming to a decision. One further matter to consider under this heading is whether any sentence at law, would necessarily include supervision by the Probation Service. In this instance the applicant is already extensively supervised in the community by the appropriate medical professionals. She has embraced that supervision. In my view to require the applicant to be subject to the supervision of the Probation Service would add a somewhat superfluous layer into the existing mix of treatments – such treatments having been developed by highly skilled and experienced professionals. In summary then: In view of the prosecutor's concessions, and the matters a sentencing court would need to take into account in this particular case, I accept that any penalty imposed at law would be at the lower end of the scale. Returning to the question that I am presently considering, that is would it be more appropriate to deal with the applicant in accordance with the provision of Part 3 of the Mental Health (Criminal Procedure) Act, than otherwise in accordance with the law. It is useful to again refer to McColl JA in the El Mawas case, commencing at paragraph 71 – "Part 3 of the Act requires a 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 conditions referred to in S.32(1) . . .with the object of ensuring that the community is protected from the conduct of such persons. As Spigelman CJ . . . said in R-v-Israil (2002) NSWCCA 255 at 21, the significance of mental illness of an offender in the sentencing exercise has long been accepted. Part 3 is clearly intended to permit the magistrate, if it is 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. . .. adopting the diversionary route does not mean that a defendant is not exposed to punishment. While an order under S.32(3) is not custodial in the strict sense, it may involve the imposition of conditions restricting a discharged defendant's freedom of movement and actions." With that guidance in mind, and having considered all the material in Exhibit 1, the submissions that have been made, and the issues I have specifically referred to in this judgment, I am of the view that it would be more appropriate to deal with the applicant in accordance with the provisions of Part 3 than otherwise in accordance with law. 3. THE REMAINING QUESTION FOR DETERMINATION IS WHICH OF THE ACTIONS SET OUT IN S.32 (2) OR (3) SHOULD BE TAKEN. In relation to this issue the prosecutor submitted that the treatment plan proposed was not sufficient. In response to this counsel for the applicant firstly pointed to Dr Westmore's report (Exhibit 1 @ tab 3) at page 5 where the doctor states: "Ms Deng requires continuing psychiatric care, this involves regular consultations with a treating psychiatrist and she needs to continue on antidepressants probably for a minimum of 2 years. Ms Deng should be able to take the medication herself but if there is a problem with that her eldest daughter could no doubt assist her." Counsel then referred to Ms Savage's report of 17.12.07 (Exhibit 1 @ tab 3) at page 5 where the psychologist states; "Mrs Deng intends to continue with the weekly sessions that I have offered her next year. . .(that is, 2008). Ms Savage then goes into some detail in relation to the focus and goals of the sessions. Counsel then referred to Dr Pethebridge's report of 9.10.07 (Exhibit 1 @ tab 6) at page 2 where the doctors says: "4. Treatment for Ms Deng is not required within an inpatient setting. She would benefit from ongoing treatment as an outpatient and she is likely to benefit from such treatment for a period of 10 to 16 months. A recommended treatment program would include: 4.1 Deals with the referral to STARTTS. 4.2 Present to the Outlook team, for mood and anxiety assessment and treatment team based at the Rockdale Community Mental Health Centre for a comprehensive assessment. To comply with all recommended follow up and treatment as decided by the treating clinicians of this service. This may include medications and the allocation of a service coordinator. 4.3 Ms Deng will be required to attend appointments at both of these services at a regular basis as decided by the lead clinicians. Initially it is likely that she would require follow up on a weekly basis. Ms Deng may also be prescribed medication and she will be required to comply with this." Clearly a treatment plan, which encompasses all the issues raised in those three report, can be drawn up for my approval. When I approve the final treatment plan, that document will be placed on the court file. ACCORDINGLY, THE APPLICATION IS GRANTED. There is one final issue I want to cover in this formal part of these proceedings. I make a recommendation to the RTA that the applicant not be reissued with any learner's permit until she is able to satisfy the RTA that the matters raised in the various medical reports will no long affect her ability to drive; and in any event not for at least a period of 3 years. Further if the applicant still holds a learner's permit then the RTA should take immediate action to cancel that permit on medical grounds. I require the Registrar to provide the RTA with a copy of this judgment, a copy of Dr Westmore's report of 3.9.07; Ms Savage's report of 17.12.07; and Dr Pethebridge's report of 9.10.07. Ian Barnett MAGISTRATE 30 January 2008 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.