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

1. 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 ,

(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.

(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.

(3B) If the defendant fails to appear, the Magistrate may:

(a) issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:

(a) issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).

Matters for consideration

2. In DPP v El Mawas [2006] NSWCA 154 at [75], [76] and [80], McColl JA said that there were at least three decisions to be made by a magistrate in dealing with a s 32 application.

3. The first question is whether the defendant was eligible to be dealt with under the section, which involves a finding of fact of the relevant mental condition – does it fall within the provisions of section 32(1)(a)(i), (ii) or (iii). I will return to this point later in the judgment. The defendant has been ‘diagnosed’ as having a Major Depressive Disorder.

4. Rather than at this point making a finding of fact of the relevant mental condition, I will make an assumption to that effect for the purpose of considering the second question - which is whether having regard to the facts alleged in the proceedings or such evidence as I may consider relevant, it would be more appropriate to deal with the defendant pursuant to s 32 rather than in accordance with the law.

5. If it is more appropriate to deal with the defendant pursuant to s 32, the third question is then enlivened as to which of the actions set out in s 32(2) or (3) should be taken.

6. In determining the second question, I have had regard to the agreed facts sheet (noting its tender as an agreed form of the facts); the criminal antecedents of the applicant; two colour photographs of the injury received by the victim in relation to the assault occasioning actual bodily harm matter; the psychological report of Margaret Johnson dated 8 June 2016; a letter from Dr Vijay Pandya dated 16 May 2016 and a further letter from the doctor dated 26 May 2016.

7. In Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 at [17] Howie J provided guidance in answering this question:

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.

8. The nature of the charge itself certainly does not preclude the consideration of discretion being exercised in favour of the defendant. There are both more and less objectively serious offences before the courts where such applications have been either granted or refused.

9. It is submitted that the objective seriousness of the matters is at the lower end. There was no planning involved. It is submitted that acts were impulsive and related to the applicant’s mental condition because he was unable to control his emotions. Ms Johnson, psychologist notes at paragraph 31.4:

Mr Everingham’s capacity to make good decisions in light of any situation that he felt his opinion, integrity or the reputation of someone he loves was questioned was compromised as a result of his, then, untreated major depressive disorder. His depressive illness was characterised by chronic irritability and during the course of his life he has tended to act aggressively when threatened in any way. The depressive disorder exacerbated this tendency.

10. I am of the opinion that the objective seriousness of the offending conduct for the common assault matter is around mid-level; for the intimidation matter is below mid-level and for the assault occasioning actual bodily harm is above mid-level.

Facts

11. The incident occurred in the context of a board meeting of the Dubbo Kart Club. The victim, Bert Wrigley, and the defendant are certainly acquainted with each other. They are in competition in business. The defendant believed that Mr Wrigley had made negative comments about the canteen at the last board meeting. The facts indicate that after initial verbal abuse by the defendant to Mr Wrigley, “other board members began to intervene to calm the situation, stating that nothing was actually said last meeting, and that [the defendant’s] actions were unfounded.”

12. The defendant continued to rant and rave, stood up, rushed the victim to become face to face, continued swearing and threw a number of punches with both hands to the head and face region of the victim. The defendant was restrained but said, “I’ll get ya”, “I’ll find ya”, I’ll catch up with ya.” He continued to rant and rave, again rushed the victim who this time stood up. The defendant punched the victim to the head and face before being restrained and pulled away and forcibly returned to his seat.

13. The defendant stood up holding a schooner glass containing beer, cocked his arm and threw it a distance of 3 metres in the direction of the victim, who raised his right arm to protect himself. The glass hit another glass and both shattered, sending glass shards about the place. The victim felt glass hit his head, arm and body. He received a 2-3cm bleeding laceration to his right arm. The photos are consistent with the description contained in the agreed facts. The laceration was only noticed later by the victim – with a description of a 2-3cm laceration on the back of his right arm which was bleeding down his arm. Further verbal abuse took place which give rise to the intimidation matter – “Fuck off you dog”, “If the cunt thinks this is over, it isn’t. I’ll flog the cunt”, “C’mon let’s go outside to fight”, “Good fuck of then, I’ll fucking find ya.”

14. There was an escalating level of violence, punctuated only by the intervention of other board members. The incidents were unprovoked. If, as it says in Dr Pandya’s letter of 16 May 2016 that the alleged victim “had abused his [the defendant’s] wife and this made him lose his temper and hit the victim”, any such abuse (if it occurred at all) did not occur immediately prior to the incidents of violence – the inference from the defendant is that it happened at a prior board meeting. This detracts from the suggestion of impulsivity.

15. Counsel for the defendant described the injury as a scratch. I took issue with that as it was inconsistent with the agreed facts, and in my opinion inconsistent with the colour photographs. There is no doubt that the injury satisfies the element of actual bodily harm. I proceed on the basis that the injury is as described in the agreed facts (see Khanwaiz v R [2012] NSWCCA 168 per Beech-Jones J at [94] to [96]).

16. The use of a weapon is an aggravating factor under s 21A(2)(c), Crimes (Sentencing Procedure) Act 1999 – though we are not dealing with sentence. It is also an aggravating factor as set out in Nowak v The Queen (2008) 183 A Crim R 526 at 529. This is of some significance in determining the seriousness of the matter.

17. There was no degree of planning.

18. The public interest in punishment being imposed for the protection of the community is very high. In this case, the seriousness of the offending conduct makes more important the public interest in punishment being imposed for the protection of the community and less likely that it is appropriate to deal with the defendant under section 32.

19. Having considered all of the evidence available to me, I am not of the opinion that it would be more appropriate to deal with the defendant in accordance with the provisions of section 32 than otherwise in accordance with law.

Section 32(1)(a)(iii) pre-conditions not met

20. I should also indicate the following. Nowhere in the psychological report does it deal with the requirements of s 32(1)(a). There is a lack of evidence that the defendant suffers from a condition for which treatment is available in a mental health facility – a fundamental jurisdictional requirement as discussed in Edwards v DPP [2012] NSWSC 105 at [14]-[21]. There is no classification by the psychologist that the Major Depressive Disorder is a mental illness, which would obviate the need for the previous point. These matters are not to be assumed or inferred.

21. The treatment plan is generic and non-specific to this defendant. It is certainly not a clear and effective plan within the meaning given in the case the prosecutor relies upon, Perry v Forbes & Storey (unreported, Supreme Court of NSW, 21 May 1993) at 15:

Practically, he [the Magistrate] needed to have placed before him a clear and effective treatment plan and one which was likely to ensure that there would not be a repetition of the incident in question or the occurrence of some other unfavourable incident.

22. Order:

1. The application is refused.

Magistrate P Stewart

Dubbo Local Court

23 June 2016

**********

Note: The defendant subsequently pleaded guilty and was sentenced as follows:

2. Common assault: fined $1,000

3. Assault occasioning actual bodily harm: 8 months imprisonment suspended per s 12, Crimes (Sentencing Procedure) Act 1999

4. Intimidation: Section 9 bond for 2 years with supervision – condition of anger management treatment recommended

On 2 August 2016, the District Court (Baly J) heard an appeal against sentence and re-sentenced the defendant on the assault occasioning actual bodily harm charge to a section 9 good behaviour bond for 2 years, 6 months with supervision and a condition of anger management treatment.

Decision last updated: 04 August 2016