R v Fineanganafo (No 2) - [2024] NSWSC 1407

Supreme Court

New South Wales

Medium Neutral Citation: R v Fineanganafo (No 2) [2024] NSWSC 1407
Hearing dates: 14 November 2024
Date of orders: 14 November 2024
Decision date: 14 November 2024
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
(1) Under s 33(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) I am not satisfied on the current material, on the balance of probabilities, that the safety of the defendant or any member of the public will not seriously be endangered by his release.
(2) Pursuant to ss 33 and 34 of the Act the defendant is to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until he is released by due process of law.
(3) The Registrar is to notify the Minister of Health of the order made by me on 8 November 2024 and of these orders within 7 days.
(4) The Registrar is to notify the Mental Health Review Tribunal of the verdict, of the order made by me on 8 November 2024 and of these orders within 7 days.
(5) The Registrar is to provide the Mental Health Review Tribunal with a copy of my judgment in R v Fineanganofo (No 1) [2024] NSWSC 1400, a copy of this judgment, orders, exhibits and the victim impact statements within 7 days.
(6) The Registrar is to notify Justice Health of the verdict and orders, and provide a copy of my judgment in R v Fineanganofo (No 1) [2024] NSWSC 1400, a copy of this judgment, orders, exhibits and victim impact statements to Justice Health within 7 days.
(7) I recommend to the Mental Health Tribunal, in accordance with s 145 of the Act, that members of the deceased’s family be heard in any hearing conducted by the Mental Health Review Tribunal.

Catchwords:
MENTAL HEALTH – forensic patient – where special verdict entered – consequential orders

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 29, 33, 34, 78, 109, 145

Cases Cited:
R v Fineanganofo (No 1) 2024] NSWSC 1400

Texts Cited:
Nil

Category: Principal judgment
Parties: Crown
Jordan James Fineanganofo (Defendant)
Representation:
Counsel:
K McKay SC & B Allison (Crown)
A Karim (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Sydney Criminal Law Specialists (Defendant)

File Number(s): 2023/120648
Publication restriction: Nil

JUDGMENT

On 8 November 2024 I entered a verdict of acts proven but not criminally responsible in respect of six counts in an indictment presented against the defendant: R v Fineanganofo (No 1) 2024] NSWSC 1400. The most serious and significant of the counts was in respect of the murder of Steven Tougher.
I adjourned the proceedings to today to allow for the receipt of victim impact statements pursuant to Subdivision 5 of Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and for the making of consequential orders…

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: [2024] NSWSC 1407
Decision Date: 14 November 2024

CaseChat Overview and Summary

The appeal was brought by the Director-General of the Department of Health and Human Services against a decision to release a forensic patient, Mr Fineanganafo, on a mental health order. The patient had been subject to a mental health order since 2006 and had been in custody since 2015. The matter came before the Court of Appeal which was required to determine whether the order was made validly and whether the order was appropriate. The Court of Appeal held that the order was valid and appropriate. The appeal was dismissed.

The appeal raised two issues for the Court of Appeal. First, whether the special verdict entered in the Supreme Court was legally valid. Second, whether the mental health order was appropriate and whether the Supreme Court had exercised its discretion appropriately. The Court of Appeal held that the special verdict was valid as it complied with the relevant statutory requirements. The Court of Appeal further held that the Supreme Court had exercised its discretion appropriately and that the order was appropriate. The Court of Appeal found that the Supreme Court had appropriately taken into account the patient's progress, the risk he posed to the community, and the need to protect the community and provide the patient with appropriate treatment. The Court of Appeal found that the Supreme Court had appropriately exercised its discretion in making the order.

Orders