Local Court New South Wales Medium Neutral Citation: In the Application of S under section 32 of the Mental Health (Forensic Proceedings) Act 1990 [2013] NSWLC 4 Hearing dates: 12/06/2013 Decision date: 12 June 2013 Jurisdiction: Criminal Before: Magistrate Dare SC Decision: Application dismissed Catchwords: CRIMINAL LAW - make false call to emergency service number (x 19) - dishonestly obtain financial advantage by deception - objective seriousness of offences MENTAL HEALTH - section 32 application - whether appropriate in circumstances - considerations Legislation Cited: Crimes Act 1900 Criminal Code Act 1995 (Cth) Crimes (Sentencing Procedure) Act 1999 Mental Health Act 1990 Mental Health (Forensic Proceedings) Act 1990 Cases Cited: Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346 Director of Public Prosecutions v El Mawas [2006] NSWCA 154 Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092 Mantell v Molyneux [2006] NSWSC 955; (2006) 165 A Crim R 83 Perry v Forbes (unreported, Supreme Court of NSW, 21/5/1993) R v El-Rashid (unreported, NSWCCA, 7/4/1995) R v Finnie [2002] NSWCCA 533 R v Hawkins (1989) 45 A Crim R 430 R v McLean (unreported, NSWCCA, 31/3/1989) R v Mears (1991) 53 A Crim R 141 R v Mungomery (2004) 151 A Crim R 376 R v Murtaza [2001] NSWCCA 336 R v Pont (2000) 121 A Crim R 302 R v Todorovic [2008] NSWCCA 49 R v Way [2004] 60 NSWLR 168 R v Woodman [2001] NSWCCA 310 Category: Interlocutory applications Parties: S (the Applicant) NSW Police Representation: Mr J Dalzell of Counsel for the Applicant Mrs R Power, Gordon Garling Moffitt for the Applicant Sergeant D Middleton, Police Prosecutor, for the Informant File Number(s): 2013/43777; 2013/15136 Publication restriction: See Publication Note at end of judgment Judgment 1The Applicant, S, stands charged with a number of counts of making false calls to an emergency service number contrary to section 474.18(1) of the Criminal Code Act (Cth) 1995 and counts of dishonestly obtaining a financial benefit by deception contrary to section 192E(1)(b) of the Crimes Act 1900. As yet, no pleas have been entered to the charges. I have already delivered a judgment concerning a suppression or non-publication order: see In the Application of S for a Supression or Non-Publication Order [2013] NSWLC 1. 2When the matters were last before the Court, Mrs Power, Solicitor for the Applicant, advised that it was intended to make an application pursuant to section 32 of the Mental Health (Forensic Proceedings) Act 1990. That application was adjourned to 12 June 2013 to obtain any medical reports and a treatment plan. 3I have been provided, by agreement, with a comprehensive report of Professor Stephen Woods in advance of 12 June 2013. I was also provided with the Police Facts Sheet. It is common ground that there is no prior criminal history. 4The offence contrary to section 192E(1)(b) provides for a sentence of imprisonment for 10 years upon conviction on Indictment. The offence contrary to section 474.18(1) provides for a penalty of imprisonment for 3 years. The jurisdiction of the Local Court is confined to the imposition of individual sentences for 2 years but which can be cumulated up to 5 years. The penalties imposed by the respective Parliaments are an indication as to the objective seriousness of the offences, the relevance of which will be explained later in this judgment. 5Section 32 of the Mental Health (Forensic Proceedings) Act 1990 provides as follows:- (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 mental health facility, but is not a mentally ill person, 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. 6A further relevant provision of the Act is contained in section 36 which provides that a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself. I refer here, of course, to the substantial report of Professor Woods. 7It will be convenient at this stage to look at the factual allegations in support of the charges. The Fact Sheet is part of the Court record so my own summary will suffice for present purposes. At the time of the alleged offences, the Applicant was a volunteer fire fighter with the New South Wales Rural Fire Service and commenced employment with the Fire and Rescue New South Wales in October 2012 as a Retained Fire Fighter. 8On 21 August 2012 the Applicant commenced contacting the Emergency Service Number 000 on something in the order of 18 occasions with a simless mobile telephone through to 20 December 2012. The services of Fire and Rescue were requested. Each call is allocated a call number and the calls are also recorded. The calls specified such incidents as a motor vehicle collision; grass fire; silo fire. As a result of these calls, a unit from the Rural Fire Service was deployed where it was discovered no incident or fire was located. 9The Applicant attended the sites as part of the call-out crews. For that attendance he was paid in accordance with his employment agreement with Fire and Rescue New South Wales. He was paid $350. A further total amount of $4,569 was paid to other members of the call-out crew attending the hoax calls. This figure takes no account of the costs of fuel and wear and tear to the equipment. 10On 16 January 2013, he attended Young Police Station for an arranged interview. During the interview he was played a 000 call it was alleged he made on 11 January 2013. He admitted making this call; however, when played a number of further calls he denied making them. He was later placed under arrest and charged. 11That, in brief, is the factual background upon which the application under section 32 of the Act proceeds. The principal document relied upon In support of the application is the report of Professor Woods, Forensic Psychologist, dated 4 March 2013. Professor Woods advised both the Applicant and his parents that the report would be tendered in evidence and that any disclosures made would not enjoy any privilege of confidentiality. The report is now part of the Court record and commences with the following observations:- In summary, assessment of [the Applicant] revealed him to be in many ways an emotionally immature young man of estimated low average intelligence and with corresponding level of executive functioning. Cognitive assessment carried out at age 8 years 9 months revealed 'mild intellectual disability'. [The Applicant] appears to have developed his sense of self around the Rural Fire Service and to being something of a 'small town hero'. He also appears to have been given far greater responsibility than appropriate for a person of his age, intellect and emotional maturity. Notwithstanding [the Applicant]'s assertion of having no memory of making the hoax calls (but accepting that he did make the calls) I am of opinion that the calls were made in order to have a greater level of active involvement in the Fire Service - particularly ' ... the excitement of riding in a fire truck with colleagues and assuming (or at least attempting to assume) a leadership role.' On the occasions that [the Applicant] was not able to be part of the response to the hoax calls (due to his employer not relieving him from work duties) he attended the Fire Station following the return of the response team - thus vicariously sharing in the excitement. 12The Applicant has been actively involved as a volunteer bush firefighter since the age of 16 years. Professor Woods noted numerous media clippings and the NSW Rural Fire Service Association newsletters attesting to that involvement including being a member of the winning Young Rural Fire Cadets team who were crowned State Champions in 2010 and being subsequently nominated through Young Shire Council for recognition at the Australia Day awards. Further, being a member of the successful South West Zone Rural Fire Service cadets' team taking out second place in the Australian National Fire Cadet Championships in 2011. 13His parents and younger brother continue to serve as volunteers in the NSW Rural Fire Service. 14The Applicant completed Year 10 in 2010 and currently attends TAFE as part of his Metal Fabricator/Welding apprenticeship. The report refers to a history of learning difficulties dating back to pre-school with learning difficulties receiving treatment from a Paediatric Occupational Therapist. At age 6 years he was assessed by a Speech Pathologist and an Educational Psychologist relating to delays in speech development and at age 8 years he was referred to a Behavioural Optometrist for assessment and treatment of impaired visual information processing. At the same age he was assessed by a psychologist, the results of psychometric testing indicating a mild intellectual disability. At age 11 years he was referred to a Paediatrician in relation to learning difficulties and hyperactivity, being diagnosed with Attention Deficit Hyperactivity Disorder and placed on Ritalin. 15The Applicant told Professor Woods that he discontinued the medication after a period due to lack of improvement in his symptoms. His General Practitioner confirmed that the Applicant had not been on this medication for some years. The Doctor reported that while the medication appeared to provide significant improvement in the areas of impulsivity and distractibility, there was no obvious impact on the Applicant's learning difficulties. The parents told Professor Woods that the Applicant continued to struggle with his studies throughout high school and his TAFE courses. They further advised that he continues to require "extra assistance" in the completion of TAFE written assignments. 16Since leaving school, the Applicant has maintained a stable employment record with a local engineering company where he is employed as a third year Apprentice Metal Fabricator/Welder. 17On Mental Status examination he presented as a neatly groomed and polite young man who was co-operative with all aspects of the assessment. He was oriented to time, place and purpose of the assessment interview. No evidence of sensory, perceptual or cognitive impairment was detected. He did not exhibit or acknowledge having ever experienced symptoms of gross abnormal psychopathology. Similarly, he denied experiencing any symptoms even mildly suggestive of depression or undue levels of anxiety. Indeed, the report notes, a particularly noteworthy feature of his presentation was the reported absence of any areas of concern that one would tend to associate with circumstances of the type arising from criminal charges. 18Professor Woods administered a variety of tests including the Beck Anxiety Inventory and the Paulhus Deception Scale, the results of which were unremarkable. He assessed the Applicant as at low risk of re-offending and likely to require the lowest permissible level of supervision. The Applicant exhibits noteworthy characteristics of Avoidant Personality Disorder but not to the extent that he satisfies the strict diagnostic criteria of the Disorder. No evidence of a mental illness as defined in the Mental Health Act was found. 19Professor Woods concludes his report in the following way:- [The Applicant] is not endowed with a high level of intelligence. Similarly, his levels of social maturity and executive function are felt to be (at best) in the low average range. [The Applicant]'s apparent lack of appreciation of the potential consequences of his actions at the material time and continued repression of memory of his actions are consistent with his estimated levels of cognitive and executive functioning. These behaviours are also consistent with features of Avoidant Personality Disorder. [The Applicant] was raised in a family environment where service to the community is strongly valued. It was within this environment that he developed his sense of self and as a member of the volunteer Rural Fire Service was able to achieve respect from others. It would, however, appear that the levels of responsibility given to [the Applicant] in the absence of what his parents report to be appropriate leadership training was beyond his level of maturity. The hoax telephone calls made by [the Applicant] appear to have been entirely motivated by the need to maintain a high level of involvement in an activity where he was able to perceive of himself as a capable person who helps others. 20Despite some setbacks as a child and at school, the Applicant is something of an achiever. He tried hard to emulate his family's involvement in the Rural Fire Service and with no small measure of success. He found schooling difficult but achieved his Year 10. He is in stable employment and making sound progress in his third year Apprenticeship - even if he does need a bit of help with written assignments. The important thing is that he is doing the best he can; he is keeping at it and he is getting there. He appears to function very well in the community and he deserves credit for that. 21I have to say I was concerned at a number of aspects where some form of blame for the Applicant's conduct was sought to be ascribed to others. Professor Woods does not seek to do this himself but obviously refers to what he was told by either the Defendant or his parents or both and I feel this may have had some bearing on his opinion. For example, the parents reported that they had been long concerned about the high levels of responsibility afforded to their son in both the NSW Rural Fire Service and subsequently the Fire and Rescue Service. I am not advised what asserted levels of "high responsibility" were actually reposed in a (then) 18 year old but if they were so concerned that he was not then mature enough to handle them - why did they "ultimately acquiesce" (whatever that may mean) to the recommendation of the Local Manager of the Rural Fire Service that the Applicant be accepted into the NSW Fire and Rescue Service. It occurs to me that he acquitted himself well and with enthusiasm from cadet level onwards and created a favourable impression on management. It also occurs to me that he was pleased with what he achieved and that his parents were proud of him accordingly. If there really was any real parental doubt, why "ultimately acquiesce"? 22Next, there was reference to the Applicant being a front-line responder and being responsible for the care of a victim with serious injuries. Both the Applicant and his parents told Professor Woods that no post-trauma incident briefing was offered or even suggested. I am not advised whether any was required or even requested. Nor am I advised as to the relevance of this to the present Application. If there really was any identifiable adverse reaction to this experience, I would have thought it would be enough to give the Rural Fire Service away rather than embracing it as he continued to do - even to the point of obsession. 23It needs to be made clear to the Applicant that he is not a victim in this matter. And others should not seek to portray him as such. 24I now turn to the task prescribed by section 32 of the Act. 25The offences involving fraud upon the Fire Service plus making false calls to an emergency number must be viewed as objectively serious crimes indeed and, in the ordinary course of events, call for condign punishment. The objective seriousness of an offence is assessed by reference to the elements of the offence and statutory maximum. The statutory maximum penalty acts as a "benchmark or reference point": R v Way [2004] 60 NSWLR 168. 26Over the years, Courts have recognised several factors that bear generally upon the objective seriousness of a given offence including the offences here in question. The interplay of these factors help to place the offence on the spectrum of like offences. The following features have been identified as influencing the assessment of the gravity of the crime:- (1)The amount of money involved (R v Hawkins (1989) 45 A Crim R 430; R v Mungomery (2004) 151 A Crim R 376 at [40]; R v Woodman [2001] NSWCCA 310, R v Finnie [2002] NSWCCA 533 at [59]) and whether the loss is irretrievable: R v Todorovic [2008] NSWCCA 49 at [19]. 27It has to be said that here the amount of money flowing to the Applicant was not large; however, in R v Finnie [2002] NSWCCA 533 it was held that although the amount of money defrauded is not determinative of the seriousness of the offence, "it is relevant to a degree and particularly where the offences are premeditated, committed on a number of separate occasions and involve a degree of planning". (2)The length of time over which the offences are committed: R v Pont (2000) 121 A Crim R 302 at [74], [75], R v Mungomery (2004) 151 A Crim R 376 at [40]. 28Here, the offending was over a 4-month period. This is relevant to indicate the degree of planning and to show it was not an impulsive offence: see R v Mears (1991) 53 A Crim R 141 @ 145; R v Murtaza [2001] NSWCCA 336. (3)The motive for the crime: R v Mears (1991) 53 A Crim R 141 at 145, R v Hill [2004] NSWCCA 257 at [6], R v Woodman [2001] NSWCCA 310 at [29]. 29I do not believe that money was the real motivation for the Applicant's actions, rather, it was to alleviate boredom in a life which had no interests or organised activity other than his association with the Fire Service (see Report of Professor Woods, Par 1.2, p 6). (4)The degree of planning and sophistication: R v Mille (unreported, NSWCCA, 1/5/98), R v Pont (2000) 121 A Crim R 302 at [43]-[44], R v Murtaza [2001] NSWCCA 336 at [15], Stevens v R [2009] NSWCCA 260 at [59], [78]. 30This is relevant to the question of whether the offences were part of an organised or planned activity which is an aggravating factor to be taken into account under section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999. (5)An accompanying breach of trust: R v El-Rashid (unreported, NSWCCA, 7/4/95), R v Pont (2000) 121 A Crim R 302, R v Hawkins (1989) 45 A Crim R 430. 31Offences of this nature are difficult to detect and go to the very heart of the relationship between employer and employee/volunteer in an emergency service setting. See also R v McLean (unreported, NSWCCA, 31/3/1989). The courts have also had regard to the impact on public confidence: R v Pont (2000) 121 A Crim R 302 at [74], [75]. To that one adds the real possibility of danger to life and property when crews are diverted from attending at genuine incidents because of hoax calls. 32The purpose of referring to these authorities is to reflect the objective seriousness of the offending conduct in matters such as the present, which is a requirement for consideration in conformity with such cases as Perry v Forbes (unreported, Supreme Court of NSW, 21/5/1993) at [48] of the judgment; Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 at [17]; by Spigelman CJ in Director of Public Prosecutions v El Mawas [2006] NSWCA 154 at [17]; by McColl JA in the same case at [77]; by Adams J in Mantell v Molyneux [2006] NSWSC 955; (2006) 165 A Crim R 83 at [40]; and by Hall J in Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092 at [85(7)]: see also Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346 per Button J, at [59]. 33In Confos v Director of Public Prosecutions (NSW), Howie J observed at [17]- 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. 34The correctness of his Honour's decision was confirmed in Director of Public Prosecutions v El Mawas - see, in particular, the leading judgment of Justice McColl with whom Spigelman CJ and Handley JA agreed. His Honour the Chief Justice added (at [17]) that the seriousness of the alleged offence is always a matter entitled to weight in formulating the judgment for which section 32 calls. 35Mr Dalzell of Counsel, in the course of his helpful submissions, referred me to the report of Professor Woods, in particular the observations of mild intellectual disability, emotional immaturity, a low level of intelligence and learning difficulties. He posed the question, "Who in his right mind would do this?" but motivations can be many and still not linked to the kind of developmental disability or mental illness contemplated by the legislation. He submitted that the very symptomology described by Professor Woods would best be addressed by the Applicant complying with the Treatment Plan and accompanying letter from Ms McAllister, a local Psychologist and he urged me to grant the Application. 36Sergeant Middleton submitted that the report does not go so far as to establish the pre-requisites in section 32(1)(a) of the Act but, even if it did (and without conceding it), he further submits that the objective seriousness of the charges would militate against the exercise of the judicial discretion called for and that the matters ought be dealt with according to law. 37In my view, on the totality of the evidence before the Court, the Applicant is not suffering from a developmental disability within the meaning and contemplation of section 32 of the Mental Health (Forensic Proceedings) Act 1990. The history reveals at most a "mild intellectual disability" from a young age persisting to an extent and while he exhibits characteristics of Avoidant Personality Disorder, Professor Woods says he does not satisfy the strict diagnostic criteria of the Disorder. In any event, this all arises after the events in question. Nor has it been shown he is suffering from a mental illness or a mental condition for which treatment is available in a hospital. That should be enough to dispose of the Application; however, even if reasonable minds should reasonably differ with my conclusion, I also take the view that the seriousness of the offences and of the offending is such that the charges should be dealt with according to law rather than under the Mental Health legislation. On either view, it follows that the Application must be dismissed. Magistrate P.S. Dare SC Young Local Court 12 June 2013 ********** Publication note: The Applicant's name is not published so as not to identify him as a defendant in other proceedings 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: 28 June 2013