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

1. 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.

2. 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 pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”).

3. I have listened to the very moving tributes to Steven in the victim impact statements. There can be no doubt that he was a very special person who was greatly loved and respected. His brutal and senseless killing is difficult to comprehend. His killing has badly affected not only family members but also his work colleagues, particularly those who were involved in the events of that awful night. Their lives will never be the same again.

4. I want to commend the very brave actions of Mr James Arthur and Mr Daniel Nia who tried very hard to stop the defendant from stabbing Mr Tougher by kicking him and grabbing him in a bear hug, at very considerable risk to themselves. Mr Arthur and Steven’s other colleagues have been deeply traumatised by their experiences. I also acknowledge what Mr Appleyard, the victim of the threatened stabbing at the 7 Eleven at Ingleburn, experienced at the time, and how that has so badly affected his life since; and I acknowledge Ms Howe, the victim of the offence in the Bunnings Car Park, and how that has affected her. I also acknowledge the other victims of the offences committed by the defendant from whom we have not heard.

5. The outcome of the enquiry has not been, and will not be, easy for family members, colleagues and friends of Mr Tougher and for some members of the community to understand. What happened in the McDonalds carpark was a terrible tragedy. Mr Tougher who, as a paramedic, was employed to help and save people in unfortunate and tragic situations became the victim without any fault on his part. He said or did nothing to provoke what happened. Tragically, he came into contact with the defendant who had suffered from, and at the time suffered from, severe mental health issues that impaired his judgment and ability to think logically, and caused him to act in the way he did. The behaviour he manifested towards the other victims, all randomly threatened in one way or another, also demonstrates those mental health issues.

6. I extend to Mr Tougher’s wife, his parents, his sister and other members of his family, his colleagues and his friends, my sympathy and condolences on behalf of the Court for their loss.

7. It is important for everyone to understand the effect of the special verdict I found. The effect of the orders will be that the defendant will remain in custody and be held as a forensic patient to come under the supervision of the Mental Health Review Tribunal. The statutory scheme surrounding that Tribunal is such that the defendant will not be released until the Tribunal is satisfied that the safety of any member of the public, or of the defendant himself, will not be seriously endangered by his release: ss.29(d) and 84(2) of the Act. His case will be reviewed by the Tribunal as soon as practicable and will be subject to review at six-monthly intervals: s. 78 of the Act. If, at some stage in the future, the defendant comes to be released, it may be on conditions, and if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained: s.109 of the Act.

8. Dealing with mentally ill people, especially when they commit crimes, is not easy, in the sense that the interests of all involved need to be taken into account and protected. The Act under which I conducted the enquiry and will make the orders concerning the future of the defendant, is a relatively new Act that makes provision for how mentally impaired people who commit crimes are dealt with, building on developments in knowledge and experience since the earlier Act was passed 30 years previously. I understand that some will feel that what the Act provides is not satisfactory, and that the system itself is not satisfactory, but that is the way the Court and we, as a society, have to deal with tragedy, such has occurred here, where mentally impaired people commit these crimes.

9. I make the following orders:

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.

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Decision last updated: 15 November 2024