Director of Public Prosecutions v Lopez-Aguilar [2013] NSWSC 1019 (5 August 2013)

Last Updated: 7 August 2013

Supreme Court New South Wales

Case Title:	Director of Public Prosecutions v Lopez-Aguilar
Medium Neutral Citation:	[2013] NSWSC 1019
Hearing Date(s):	30 July 2013
Decision Date:	05 August 2013
Before:	Harrison J
Decision:	1. Set aside the orders made by his Honour Coombs LCM on 17 December 2012 dismissing pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 the criminal proceedings commenced against Elizabeth Lopez-Aguilar for the offences of driving a motor vehicle whilst there was present in her blood the middle range prescribed concentration of alcohol, driving in a manner dangerous to the public and driving whilst disqualified from holding a driver's licence. 2. Remit the matters to his Honour in the Local Court to be dealt with according to law.
Catchwords:	APPEAL - appeal from decision of Local Court - where magistrate dismissed charges pursuant to s 32 Mental Health (Forensic Provisions) Act - where parties agree that magistrate failed to provide adequate reasons or address balancing test - application to remit matter not opposed - whether matter should be heard by a different magistrate
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Mental Health (Forensic Provisions) Act 1990 Supreme Court Act 1970
Cases Cited:	Confos v DPP [2004] NSWSC 1159 Downes v DPP [2000] NSWSC 1054 DPP v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 DPP v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 DPP v Soliman [2013] NSWSC 346 DPP v Yeo [2008] NSWSC 953; (2008) 187 A Crim R 82
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Plaintiff) Elizabeth Lopez-Aguilar (Defendant)
Representation
- Counsel:	Counsel: I Bourke (Plaintiff) C Smith (Defendant)
- Solicitors:	Solicitors: Director of Public Prosecutions (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2013/78310
Decision Under Appeal
- Court / Tribunal:	Local Court
- Before:	Coombs LCM
- Date of Decision:	17 December 2012
- Court File Number(s):	2012/219394
Publication Restriction:	Nil

JUDGMENT

1. HIS HONOUR: On 17 December 2012 Ms Lopez-Aguilar appeared before his Honour Coombs LCM at Fairfield Local Court for sentence on charges that she drove a motor vehicle whilst there was present in her blood the middle range prescribed concentration of alcohol, drove in a manner dangerous to the public and whilst disqualified. She had previously pleaded guilty to all of these offences. Ms Lopez-Aguilar applied on that day to have the matters dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990. His Honour acceded to that application and dismissed all matters pursuant to the section.

2. By summons filed on 14 March 2013 the Director appeals to this Court seeking alternatively an order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 setting aside the orders made below or alternatively orders in the nature of prerogative relief pursuant to s 69 of the Supreme Court Act 1970 quashing his Honour's determination dismissing the proceedings. The Director seeks an order in either case that the matter be remitted to the Local Court to be dealt with according to law. No order for costs is sought.

3. The grounds upon which the Director seeks relief are as follows:

1. That his Honour failed to make any finding as to whether or why Ms Lopez-Aguilar was eligible to be dealt with under s 32 of the Act.

2. That his Honour failed to make any finding as to whether it was more appropriate to deal with Ms Lopez-Aguilar under s 32 of the Act.

3. That his Honour failed to have regard to the seriousness of the offences, including not referring to the facts before him.

4. That his Honour failed to provide adequate reasons for the decision to deal with Ms Lopez-Aguilar under s 32 of the Act.

5. That his Honour failed to provide adequate reasons for his decision to dismiss the charges.

6. That his Honour dismissed the charges.

4. There is no opposition from Ms Lopez-Aguilar to the matter being remitted to the Local Court although she opposes the matter being remitted with a condition or direction that it be dealt with by a different magistrate. In contrast, the Director asks that such a condition or direction be imposed upon any remitter that I might be inclined to order. In summary Ms Lopez-Aguilar accepts that his Honour's decision was affected by error, principally the failure to provide adequate reasons why it was more appropriate to deal with her pursuant to s 32 than in accordance with the law.

Jurisdiction

5. The Crown has a right of appeal to this Court against an order made by a magistrate dismissing a matter the subject of any summary proceedings on a ground that involves a question of law: s 56 Crimes (Appeal and Review) Act 2001. It is apparent that an order "dismissing" a matter pursuant to s 32 falls within the words "dismissing a matter the subject of any summary proceedings": s 56(1)(c); DPP v Soliman [2013] NSWSC 346 at [48]. A failure by a magistrate to address or determine a question of law required to be determined is an "error of law": for example, see Downes v DPP [2000] NSWSC 1054 at [25].

6. Ms Lopez-Aguilar accepts that if I am satisfied that his Honour's decision was affected by error there is a basis for the grant of relief pursuant to s 59 of the Act or alternatively pursuant to s 69 of the Supreme Court Act.

The provision

7. Section 32 of the Mental Health (Forensic Provisions) Act is in the following relevant terms:

"32 Persons suffering from mental illness or condition

(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..."

Authorities

8. In DPP v El Mawas [2006] NSWCA 154 McColl JA said that there were at least three decisions to be made by a magistrate in dealing with a s 32 application. First, whether the defendant was eligible to be dealt with under the section, which involves a finding of fact and is properly described as the jurisdictional question - that is to say, what is the relevant mental condition: see [75]. Secondly, whether having regard to the facts alleged in the proceedings or such evidence as the magistrate may consider relevant, it would be more appropriate to deal with the defendant pursuant to s 32 rather than in accordance with the law: see [76]. Thirdly, if it is more appropriate to deal with the defendant pursuant to s 32, which of the actions set out in s 32(2) or (3) should be taken: see [80].

9. In DPP v Soliman, Button J said this at [56]-[61]:

"[56] Furthermore, I respectfully agree with both counsel that the requirements of a judgment in an application under the section will very much depend upon the circumstances, and therefore one should be careful not to be overly prescriptive. For example, if the prosecutor is in full agreement with the making of an order, then the judgment may well be substantially shorter than if there is extensive dispute. If the evidence is overwhelming with regard to the jurisdictional question, then a magistrate may need to take very little time with it. And if an offence is self-evidently trivial, there may be little need to analyse its seriousness at length.

[57] Bearing those two notes of caution in mind, I consider that, in many applications pursuant to this section, it would be appropriate for a magistrate to express very briefly his or her finding as to whether a defendant falls within s 32(1)(a). It will also often be appropriate to indicate within which subparagraph a defendant falls.

[58] I also consider that, in many if not most applications under the section, it would be appropriate for a magistrate to indicate that he or she has considered the balancing test contained in s 32(1)(b).

[59] And in light of what was said by Smart J in Perry v Forbes (unreported, Supreme Court of NSW, 21 May 1993) at [48] of the judgment; by Howie J in Confos v Director of Public Prosecutions (NSW) at [17]; by Spigelman CJ in Director of Public Prosecutions v El Mawas 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)], I consider that a magistrate should indicate in a judgment that refers to that balancing exercise that the seriousness of the offence has been taken into account.

[60] Finally, in the judgment as to whether or not to make an order, I consider that it often would be appropriate to discuss, albeit briefly, what is proposed by way of assistance and treatment with regard to a defendant, and the reason why such a course is to be adopted or rejected.

[61] To be clear, I am thinking in the usual course of a judgment that is to be measured in several sentences, not several paragraphs or several pages of transcript."

Consideration

10. It is not in dispute that Ms Lopez-Aguilar committed a series of serious driving offences. Her blood alcohol level was 0.142. She drove at speeds of between 120km/h and 130km/h in a 60km/h zone. She changed lanes and overtook vehicles at speed when it was dangerous to do so, crossing double unbroken lines travelling on the incorrect side of the road. She failed to stop after police had activated their emergency lights signalling her to stop.

11. In the course of the proceedings before his Honour, Ms Lopez-Aguilar relied upon medical evidence from a psychiatrist Dr Murugesan and a psychologist Mr Albassit. The former expressed the opinion that Ms Lopez-Aguilar suffered from a mental illness, namely Major Depressive Disorder, and that the condition satisfied s 32(1)(a)(iii) of the Act. He also considered that she must have been suffering from that condition at the time of the events giving rise to the charges.

12. The prosecutor indicated to his Honour that the s 32 application was opposed "on the second limb" of s 32, meaning that it was not appropriate to exercise the discretion arising under the section in this case. The prosecutor submitted that the offences were not appropriate to be dealt with under s 32 because they were serious, involving at least the elements described above. He submitted that there was not a strong link between the offences and the mental illness concerned.

13. Ms Lopez-Aguilar's solicitor informed his Honour that Dr Murugesan had provided a treatment plan for her but "no specific undertaking". The solicitor indicated that Mr Albassit might be prepared to be the responsible person. After some delay his Honour was informed that Mr Albassit was willing to "report any breaches that don't comply with the s 32 conditions for the term of the order." His Honour considered Mr Albassit's report and was thereafter apparently satisfied that he could dismiss the charges in accordance with s 32. That is what he proceeded to do.

Grounds 4 and 5

14. It was contended on behalf of Ms Lopez-Aguilar before me that it was only necessary to deal with grounds 4 and 5 because the conceded fundamental error in this case was his Honour's failure clearly to articulate the reasons why the matter should be dismissed pursuant to s 32. It was submitted that it would be reasonable to assume that if his Honour gave reasons underpinning the balancing exercise involved in making a s 32 determination, it would necessarily follow that all of the relevant questions posed by s 32 would thereby be answered. Specifically, if a balancing exercise were properly undertaken, his Honour would necessarily be required to refer to the relevant medical condition under s 32(1)(a), why in a given case it is or is not more appropriate to deal with Ms Lopez-Aguilar under s 32(1)(b) and what the appropriate response should be as either a conditional of unconditional order under s 32(2) or (3).

15. Ms Lopez-Aguilar expressly conceded that his Honour's reasons did not adequately reveal the bases upon which the charges were dismissed pursuant to the section. In particular, it was clear that his Honour had not referred to the fact that he had considered the balancing test for the purposes of s 32(1)(b). See generally DPP v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 at [19] and DPP v Yeo [2008] NSWSC 953 at [59].

16. Whilst I accept that his Honour's failure to give reasons, or adequate reasons, is sufficient to warrant the making of the orders that I propose, it seems to me to be appropriate, having regard to the views I have formed, that each of the Director's other grounds of appeal should be considered and ruled upon, even if it appears that they arguably invite an obvious answer or that the parties are largely in agreement about them.

Ground 1

17. In order for Ms Lopez-Aguilar to be dealt with under s 32, it first has to appear to the magistrate that she is or was either developmentally disabled or suffering from a mental illness or from a mental condition for which treatment is available in a mental health facility. That involves a finding of fact and is a jurisdictional question: DPP v El Mawas at [75]. As indicated earlier, this jurisdictional question was treated as the "first limb" of s 32. No issue was taken about satisfaction of this requirement in this case. His Honour, perhaps not unreasonably in these circumstances, assumed jurisdiction to deal with Ms Lopez-Aguilar in reliance upon s 32(1)(a)(ii), even though he did not in terms refer to any of the possible sub-paragraphs concerned.

18. The Director contended before me that, in accordance with authority, even though it was not an issue in the proceedings before him, his Honour was nevertheless required, however briefly, to record the fact that he was satisfied that jurisdiction was made out. He submitted that a lone sentence to that effect would have sufficed for this purpose. His Honour's failure to do so was said to amount to an error with respect to a question of law.

19. Notwithstanding that submission, the Director conceded that this error, taken in isolation, would not justify the intervention of this Court. I agree with that concession. The burden of the present ground of appeal is simply to mark out and to emphasise the existence of the error, even though it was literally inconsequential in this case. It would certainly not in my view call for or invite any intervention by me. Not the least of the reasons for this is that his Honour was entitled to rely upon the prosecutor's appropriate concession about the matter, if he agreed with it, and to proceed, in what I take to be a very busy list, to attend to the matters that were seriously in contest. Any other approach fails unfairly to take practical account of the relentless and pressing realities of the administration of criminal justice in the Local Court on a daily basis in New South Wales.

Grounds 2 and 3

20. The second ground of appeal raises a more important issue. It was a requirement of s 32 that his Honour determine why it was more appropriate to deal with the matter under s 32 rather than according to law. That decision called for the exercise of a value judgment in which no single consideration or combination of considerations would necessarily be determinative: DPP v El Mawas at [76]. His Honour was accordingly required to perform the balancing exercise that weighed up competing considerations of the purposes of punishment and the public interest in diverting a mentally disordered offender from the criminal justice system: see Confos v DPP [2004] NSWSC 1159 at [17].

21. In order properly to carry out such an exercise, his Honour ought to have had regard, among other things, to the charges, the surrounding facts and circumstances, the mental illness of Ms Lopez-Aguilar and the public interest. It is not apparent from the transcript of the proceedings before his Honour that he carried out the balancing exercise required by s 32(1)(b). The only passage that indicates any possible consideration of the issues is in the following terms:

"Well, while I hear what you say, Sergeant, the provisions of the Mental Health Act that allow for these orders are law. They may well be a more appropriate way of dealing with somebody who has, on this report at least, a major disorder. Certainly a gaol sentence would probably not only be bad for her but bad for the community and expensive...and if she can respond to treatment and not reoffend..."

22. The Director submitted that his Honour fell into error with respect to a question of law by failing appropriately to address the second step balancing exercise. I agree.

23. The complexities of the equation in this case were considerable. Ms Lopez-Aguilar was undoubtedly suffering from a serious mental disorder. Her criminal history was significant and, relevantly for present purposes, had a potential influence upon her likelihood of reoffending. The relationship, if any, between her mental condition and the charges that she faced was also a relevant matter. That condition and Ms Lopez-Aguilar's extensive criminal antecedents in turn posed serious questions for his Honour about the need for the protection of the public. The charges that she faced were themselves serious, involving the commission of dangerous acts with associated implications for public safety as well. Issues of specific and general deterrence added to the complex mix of competing considerations. These matters had to be compared with the countervailing consequences of a term of imprisonment, which loomed as a likely prospect in the circumstances. That list is not exhaustive.

24. Why it was or may have been "appropriate" to deal with Ms Lopez-Aguilar in accordance with the relevant provisions of the Act than otherwise in accordance with law was a function of the relationship between or among these factors. His Honour did not expose the way in which he considered that question. It is not possible to say therefore that his Honour carried out the balancing exercise that he was required to conduct.

Ground 6

25. This ground of appeal is a function of the establishment of one or more of the other grounds of appeal and does not require separate consideration.

Disposition

26. The form of the orders that I propose to make are agreed, subject to one matter. Ms Lopez-Aguilar contends that the proceedings should be remitted to his Honour whereas the Director urges that they be dealt with by another magistrate. The Director's concern is that his Honour has "predetermined" the matter and is therefore somehow disqualified from considering it further. I disagree.

27. As the matter presently stands, the decision to which his Honour came is affected by the errors of law that have been identified. That identification does not, however, thereby produce the result that his Honour's substantive conclusions or decision were wrong, but only that he erred in not conforming to the formal requirements identified in the authorities concerning the manner and process by which he was required to arrive at them. The purpose of remitting the matter to be dealt with according to law addresses those errors or errors of that type. It is not directed to the later and different, as yet hypothetical, question of whether or not in arriving at his conclusions and his decision his Honour might later be shown or found erroneously to have exercised a relevant discretion that is vulnerable to challenge, for example, upon House v R principles. It will only be when his Honour has satisfied or complied with the procedures, identified in DPP v El Mawas, according to law that any meaningful assessment of that question can be undertaken.

Orders

28. I consider that the following orders should be made:

1. Set aside the orders made by his Honour Coombs LCM on 17 December 2012 dismissing pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 the criminal proceedings commenced against Elizabeth Lopez-Aguilar for the offences of driving a motor vehicle whilst there was present in her blood the middle range prescribed concentration of alcohol, driving in a manner dangerous to the public and driving whilst disqualified from holding a driver's licence.

2. Remit the matters to his Honour in the Local Court to be dealt with according to law.

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