Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760

Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760 · Read the judgment on AustLII

Catchwords: Mental health diversion – conditional discharge – supervision by particular person or attendance on a particular place – need for specificity

The Supreme Court has held that where an offender seeks to be diverted under s32 of the Mental Health (Forensic Provisions) Act 1990 (‘the Act’), and the order is for discharge into the care of a person, or requiring attendance on a particular place or person, the orders must specify that particular place or person with some precision.

The respondent was charged with assault: he had spat ‘a large amount of phlegm and saliva’ into the face of a 3 month old child who was being pushed in a pram by her grandmother, apparently completely at random (facts almost calculated to endear any accused to the bench). A psychologist diagnosed the respondent as suffering from substance abuse disorder and borderline personality disorder. This particular matter came to court around the same time that he was due to be released on parole for an unrelated matter, and that unrelated parole order would of course mean he was going to be subject to supervision by Community Corrections on release. So, in parallel with those parole proceedings, for this assault he applied to be diverted under s32 of the Act, rather than being dealt with at law – relying in part on the fact of the parole orders to support his application. There was no concrete plan for where he was going to live, although it seemed likely to be approved by the relevant authorities that he would live with his sister in Canberra, and in the interim with his brother in Newcastle. The magistrate eventually granted the application, discharging him under s32 with order to the effect that the respondent was to accept medical advice from a ‘nominated psychiatrist/psychologist’, complete a mental health care plan, and ‘[a]ttend a psychiatrist for a medication review’.

The prosecution appealed, on the basis that the orders did not specify a person or place upon which the respondent was required to attend (which is the requirement under s32(3)(b) of the Act). R A Hulme J, sitting alone, allowed the appeal, remitted the matter to the Local Court, and ordered costs against the defendant (subject to a certificate under the Suitor’s Fund Act).

The magistrate’s orders were so vague as to render compliance uncertain and enforcement virtually impossible (at [50]). Without a psychiatrist being specified, there is no guarantee that any psychiatrist who sees the respondent would know that they are seeing the respondent pursuant to a court order, meaning they would presumably not be in a position to notify a failure to comply (at [47]). It is in fact possible for a court to order unconditional discharge pursuant to, for example, s32(3)(c). But where the discharge is conditional, the requirement to specify a person or place must be complied with, and requires identification of the person or place with some precision (at [43]).

The consequence for practitioners is that, where they rely upon a proposed treatment plan which includes conditional discharge and supervision (which, presumably, is the most common scenario), the treatment plan will need to carefully specify the people responsible for the quasi-supervision of the applicant and the places he or she needs to attend.