Confos v DPP: Balancing Competing Interests When Determining Mental Health Applications

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By Paul Gregoire and Ugur Nedim

At an intersection in Sydney city on 11 October 2003, Anthony Confos sounded his horn to indicate that the taxi driver pulled up in front of him should proceed.

But as the taxi remained stationary, Confos drove up beside it, and commenced hurling abuse and gesturing towards the driver.

Confos got so angry he opened his door and was about to get out, when the lights turned green and the taxi drove off. In a fit of road rage, he chased the taxi down New South Head Road until he was driving alongside it, and he commenced swerving, almost causing a number of collisions.

The two vehicles then careened into the Kings Cross Tunnel, as Confos blasted his horn and stared belligerently at the taxi driver. But the pair were eventually brought to a halt, when the lights turned red at the intersection of William and Yurong streets in Darlinghurst.

Confos proceeded to get out of his car and entered the taxi via the front passenger door. He then repeatedly punched the taxi driver in the face, as he called out, “You fucking stupid Asian.” And when a bystander called on the attacker to stop, he got back into his car and took off.

NSW police officers attended Confos’ home shortly after the incident. The offender admitted his involvement and was charged.

A long list of offences

Confos appeared before a NSW Local Court magistrate on 29 March 2004 to face a total of five charges.

The first was one count of menacing driving when one ought to have known it was problematic, which today falls under section 8(2) of the Road Transport (Safety and Traffic) Management Act 1999 (NSW). It carries a maximum penalty of 12 months imprisonment and/or a fine of $11,000.

Confos was further charged with one count of negligent driving, which is currently contained in section 6(1)(c) of the Road Transport (Safety and Traffic) Management Act. A fine of $2,200 applies to this crime.

The third count was driving in a dangerous manner, which now sits under section 7 of the Road Transport (Safety and Traffic) Management Act.

The maximum penalty for dangerous driving is 12 months gaol time and/or a fine of $11,000. That’s unless it’s found to be aggravated, which means it then carries a maximum of 2 years inside and/or a fine of $22,000.

However, if the charge of dangerous driving has been aggravated because the driver refused to comply with a police officer’s signal, it makes a first time offender liable to up to 3 years in prison and/or a fine of $33,000, while a repeat offender can face up to 5 years imprisonment and/or a fine of $55,000.

The offender was also facing one count of assault occasioning actual bodily harm, which is contained under section 59(1) of the Crimes Act 1900 (NSW). A maximum penalty of 5 years imprisonment applies to this offence.

And the last count Confos was facing was failing to give his particulars to another driver, which contradicts rule 287 of the current Road Rules 2014 (NSW). A $2,200 fine applies to this breach of the law.

Now repealed section 32 applications

The lawyer for Confos petitioned to have his client’s matter dealt with under section 32 of the recently repealed Mental Health (Forensic Provisions) Act 1990 (NSW).

As set out at the end of this article, these mental health orders still apply under a new piece of legislation with three significant changes.

Section 32 provided that a magistrate could dismiss charges tried summarily, and rather have the accused undertake a treatment program if they’re considered to have had a mental illness or cognitive impairment at the time the offending or during criminal proceedings.

As the charge is dismissed when this section or the current one applies, there is no conviction and no finding of guilt.

The NSW Local Court is the court of summary jurisdiction, dealing with summary offences, which are considered less serious than indictable crimes.

On agreement, certain indictable offences can be tried summarily – these are referred to as table matters – and so too can federal offences carrying up to 10 years prison time.

However, despite two doctors’ appraisals stating that Confos had been suffering a mental condition, the magistrate decided that due to the serious nature of the offending, the charges should hold, and the defendant should face criminal penalties.

On appeal

Confos appealed the decision of the magistrate not to apply a section 32 mental health order to his case to the NSW Supreme Court on 4 November 2004.

This was on the basis that he should have had his charges dropped due to his mental condition at the time of the offending.

Supreme Court Justice Roderick Howie set out that on the first day of the Local Court proceedings the magistrate had accepted the appraisal of a Dr Lee, who found Confos was suffering mood swings, accompanied by intermittent uncontrollable anger linked to his problematic cannabis use.

On having found this, the magistrate then went on to determine that due to the seriousness of the charges, she couldn’t simply apply a mental health order.

But on the request of the defendant’s lawyer, she agreed to adjourn the proceedings to allow for them to provide further evidence.

On the next day of hearings, a Dr Kohn put Confos’ mental condition down to the effect of too much of an antidepressant.

The magistrate then advised that although she sympathised with the defendant’s obvious mental health condition, she still found the charges too serious to warrant a section 32.

Justice Howie said that a magistrate can “make a discretionary judgment as to the appropriateness of proceedings under the section rather than under the general criminal law”, but this is only when “it would be more appropriate to deal with the defendant in accordance” with an order.

“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,” his Honour continued.

The Supreme Court justice warned that the ability of a higher court to interfere with another judicial officer’s discretionary determination is limited.

His Honour further set out that although the magistrate had concluded that Confos had a mental condition, she had subsequently ruled that due to the seriousness of offending it was in the public interest to proceed with criminal charges, rather than dismiss them under a mental health order.

And for this reason, Justice Howie dismissed the appeal on 3 December 2004.

New Regime for Mental Health Applications

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the New Act) came into effect on 27 March 2021. It replaced the Mental Health (Forensic Provisions) Act 1990.

Section 14 of the New Act contains similar mental health orders to that which used to apply under section 32 of the old legislation. However, there are three distinct changes.

The first is that the orders now specifically relate to a mental health impairment or cognitive impairment, which are both thoroughly defined under the Act. Section 4 defines a mental health impairment, while section 5 details the characteristics of a cognitive impairment.

Section 15 provides a non-exhaustive guidance list for magistrates to consider when making an order.

And section 16 of the New Act provides that if an individual breaches their order conditions within 12 months of it being made, they must be tried on the original charge in court. This is up from the previous 6 months that used to apply under the old provisions.

On introducing the reforms of the forensic provisions that pertain to criminal charges, NSW attorney general Mark Speakman said they were necessary to “strike the right balance between the needs of victims and the safety of the community, and the mental health of the offender”.

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