NSW Police v Everingham - [2016] NSWLC 10

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Everingham [2016] NSWLC 10
Hearing dates: 23 June 2016
Decision date: 23 June 2016
Jurisdiction: Criminal
Before: Stewart LCM
Decision:
Application refused

Catchwords: CRIMINAL PROCEEDINGS – application for mental health diversion – s 32 Mental Health (Forensic Provisions) Act 1990 - assault – assault occasioning actual bodily harm – intimidation – whether acts impulsive – inadequacy of psychological report – generic treatment plan – submissions contrary to facts re extent of injury - use of a weapon – escalating level of violence – pre-conditions of s 32(1)(a)(iii) not met
Legislation Cited: Crimes Act 1900, ss 59(1), 61
Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 9,12, 21A
Mental Health (Forensic Provisions) Act 1990, s 32
Cases Cited: Confos v DPP [2004] NSWSC 1159
DPP v El Mawas [2006] NSWCA 154
Edwards v DPP [2012] NSWSC 105
Khanwaiz v R [2012] NSWCCA 168
Nowak v The Queen (2008) 183 A Crim R 526
Perry v Forbes & Storey (unreported, Supreme Court of NSW, 21 May 1993)
Category: Procedural and other rulings
Parties: NSW Police
Jason Everingham (defendant)
Representation:
Counsel:
S Climo (for the defendant)
Solicitors:
Sgt M Howard (police prosecutor)

File Number(s): 2016/105307

Judgment

Application is made on behalf of Jason Douglas Everingham that in relation to the matters before this court of common assault, assault occasioning actual bodily harm and intimidation, he be dealt with under the provisions set out in section 32, Mental Health (Forensic Provisions) Act 1990.

Relevant legislation - s 32, Mental Health (Forensic Provisions) Act

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 2013 ,

(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWLC 10
Decision Date: 23 June 2016

CaseChat Overview and Summary

The defendant, Everingham, was facing criminal proceedings for assault occasioning actual bodily harm, intimidation, and using a weapon. The case came before the court on an application for mental health diversion under section 32 of the Mental Health (Forensic Provisions) Act 1990. The applicant argued that Everingham's actions were impulsive and that he met the pre-conditions for diversion under section 32(1)(a)(iii) of the Act. The prosecution contested the application, asserting that Everingham's actions were not impulsive and that the psychological report provided was inadequate. The court was tasked with determining whether the application for mental health diversion should be granted.

The court considered the adequacy of the psychological report and whether it provided sufficient evidence to support the claim that Everingham's acts were impulsive. It noted that the report was generic and did not address the specific circumstances of the case. The court also examined the escalating level of violence and the use of a weapon in the commission of the offence. The submissions made by the applicant contained factual inaccuracies regarding the extent of the injury caused to the victim. These factors were crucial in determining whether the pre-conditions of section 32(1)(a)(iii) were met.

Ultimately, the court found that the pre-conditions for diversion under section 32(1)(a)(iii) of the Act were not met. The psychological report was deemed inadequate, and the acts were not impulsive. Consequently, the application for mental health diversion was refused. The court's decision was based on the lack of sufficient evidence to support the claim of impulsiveness and the escalating level of violence exhibited by Everingham. The application was dismissed, and the criminal proceedings continued as scheduled.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	NSW Police v Everingham [2016] NSWLC 10
Hearing dates:	23 June 2016
Decision date:	23 June 2016
Jurisdiction:	Criminal
Before:	Stewart LCM
Decision:	Application refused
Catchwords:	CRIMINAL PROCEEDINGS – application for mental health diversion – s 32 Mental Health (Forensic Provisions) Act 1990 - assault – assault occasioning actual bodily harm – intimidation – whether acts impulsive – inadequacy of psychological report – generic treatment plan – submissions contrary to facts re extent of injury - use of a weapon – escalating level of violence – pre-conditions of s 32(1)(a)(iii) not met
Legislation Cited:	Crimes Act 1900, ss 59(1), 61 Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 9,12, 21A Mental Health (Forensic Provisions) Act 1990, s 32
Cases Cited:	Confos v DPP [2004] NSWSC 1159 DPP v El Mawas [2006] NSWCA 154 Edwards v DPP [2012] NSWSC 105 Khanwaiz v R [2012] NSWCCA 168 Nowak v The Queen (2008) 183 A Crim R 526 Perry v Forbes & Storey (unreported, Supreme Court of NSW, 21 May 1993)
Category:	Procedural and other rulings
Parties:	NSW Police Jason Everingham (defendant)
Representation:	Counsel: S Climo (for the defendant) Solicitors: Sgt M Howard (police prosecutor)
File Number(s):	2016/105307