R v O'Neill - [2023] NSWDC 650

District Court

New South Wales

Medium Neutral Citation: R v O’Neill [2023] NSWDC 650
Hearing dates: 18 May 2023
Date of orders: 18 May 2023
Decision date: 18 May 2023
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Conviction on sentence imposed by the Local Court set aside in lieu of an order under the Mental Health Act and Cognitive Impairment Forensic Provisions Act 2020.

Catchwords:
CRIME – Appeal from Local Court – Whether Magistrate ought to have made the order sought by the appellant because of his mental health at the time of offending and at time of sentence.

Legislation Cited:
Crime (Sentencing Procedure) Act 1999
Crimes (Domestic and Personal Violence) Act 2007
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Mental Health Act 2007

Cases Cited:
Nil.

Texts Cited:
Nil.

Category: Principal judgment
Parties: Crown – R (NSW)
Appellant – John Albert O’Neil
Representation:
Counsel:
Crown – Rafeeq, J.
Appellant – Bodisco, P.
Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW).
Appellant – Criminal AVO Traffic Lawyers.

File Number(s): 2022/00264013
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court

Date of Decision:

2 December 2022

Before:

Magistrate Denes

Judgment

HIS HONOUR: This is an application by an appellant under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The appellant made an application for such an order in the Local Court, but it was refused by Magistrate Denes sitting at Manly on 2 December 2022. The appellant pleaded guilty, and Her Honour sentenced him to a Community Corrections Order with a condition that he continue treatment with Mr Robert Pringle, a Clinical Psychologist. Much to my surprise, her Honour did not make an order for supervision by Community Corrections as her Honour was required to do by s 4A of the Crime (Sentencing Procedure) Act 1999.
The appellant was charged that between 4 April 2022 and 25 August 2022 at Forestville, he did stalk Caroline McNally with the intention of causing her to fear physical or mental harm. That is an offence contrary to the Crimes (Domestic and Personal Violence) Act 2007 s 13(1). The maximum penalty available in this Court for that offence is imprisonment for five years and/or a fine of 50 penalty units. In the Local Court the maximum penalty was imprisonment for two years and/or a fine of 50 penalty units.
The relevant Facts Sheet is Exhibit 7. The appellant and the complainant had been in an intimate domestic relationship for a period of nine years. For five years ending in May 2022, they had lived together at a property in Forestville. The relationship ended on 20 April 2022, but the appellant stayed at their common residence until 12 May 2022. The harassment or stalking commenced on 25 April 2022 when the appellant was intoxicated. The complainant sought refuge in her bedroom and the appellant kept on knocking on her door until he left to obtain another alcoholic beverage. She then locked the…

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.

Continue reading R v O'Neill

Details

AGLC: R v O'Neill [2023] NSWDC 650
Case: [2023] NSWDC 650
Decision Date: 18 May 2023

CaseChat Overview and Summary

The appellant, O'Neill, appealed against the sentence imposed by the Local Court, arguing that the Magistrate should have made an order under the Mental Health Act and Cognitive Impairment Forensic Provisions Act 2020, given his mental health at the time of offending and at the time of sentencing. The appeal was heard in the Supreme Court, where the court considered whether the Magistrate ought to have exercised their discretion to make an order under the relevant Acts.

The court had to determine whether the Magistrate erred in not making an order under the Mental Health Act and Cognitive Impairment Forensic Provisions Act 2020. This required the court to assess the evidence presented about the appellant's mental health at the time of the offence and at the time of sentencing. The court had to consider whether the Magistrate had sufficient evidence to conclude that the appellant's mental health was such that it should have influenced the sentencing decision.

The court found that the Magistrate had failed to consider the appellant's mental health at the time of offending and at the time of sentencing, which was a significant factor in the sentencing process. The court held that the Magistrate should have made an order under the Mental Health Act and Cognitive Impairment Forensic Provisions Act 2020. The court set aside the conviction on sentence imposed by the Local Court and ordered that an order be made under the relevant Acts instead.

Orders

Orders of the court

Conviction on sentence imposed by the Local Court set aside in lieu of an order under the Mental Health Act and Cognitive Impairment Forensic Provisions Act 2020.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v O’Neill [2023] NSWDC 650
Hearing dates:	18 May 2023
Date of orders:	18 May 2023
Decision date:	18 May 2023
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Conviction on sentence imposed by the Local Court set aside in lieu of an order under the Mental Health Act and Cognitive Impairment Forensic Provisions Act 2020.
Catchwords:	CRIME – Appeal from Local Court – Whether Magistrate ought to have made the order sought by the appellant because of his mental health at the time of offending and at time of sentence.
Legislation Cited:	Crime (Sentencing Procedure) Act 1999 Crimes (Domestic and Personal Violence) Act 2007 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Mental Health Act 2007
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Crown – R (NSW) Appellant – John Albert O’Neil
Representation:	Counsel: Crown – Rafeeq, J. Appellant – Bodisco, P. Solicitors: Crown – Office of the Director of Public Prosecutions (NSW). Appellant – Criminal AVO Traffic Lawyers.
File Number(s):	2022/00264013
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court Date of Decision: 2 December 2022 Before: Magistrate Denes