R v Pesamino

[2020] NSWSC 767

Supreme Court

New South Wales

Medium Neutral Citation:	R v Pesamino [2020] NSWSC 767
Hearing dates:	12 June 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1)   I find that Mr Pesamino is fit to be tried for the offences for which he is charged. (2)   I direct that the Tribunal be so notified. (3) In accordance with s 30(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), I find that the proceedings brought against Mr Pesamino may continue. (4)   I list the matter for further directions in the Arraignments List on 3 July 2020.
Catchwords:	MENTAL HEALTH — criminal proceedings — fitness to be tried — “Presser” principles — accused fit to be tried
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 2, ss 14, 16, 29, 30, 46, 47
Cases Cited:	Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 R v Pesamino [2019] NSWSC 1559 R v Presser [1958] VR 45
Category:	Principal judgment
Parties:	Regina (Crown) Dick AJ Pesamino (Accused)
Representation:	Counsel: A Robertson (Crown) S Walsh (Accused)   Solicitors: Office of Director of Public Prosecutions NSW (Crown) Proctor & Associates (Accused)
File Number(s):	2018/140037
Publication restriction:	Nil

Judgment

1. This matter comes before the Court for a second hearing as to the accused’s fitness to be tried in accordance with Part 2 of the Mental Health (Forensic Provisions) Act1990 (NSW) (“the Act”).

2. On 15 November 2018, the accused, Asalemo Dick AJ Pesamino, was charged with murdering Brett Nichols at Villawood on 3 May 2018. He was also charged with assaulting a witness, Greg McDougall, at Villawood on 3 May 2018 and further charged with an earlier assault of Mr Nichols on 27 March 2018.

3. The matter came before the Court on 4 November 2018 for a fitness hearing.

4. On 8 November 2018, I found that Mr Pesamino was unfit to stand trial. In accordance with s 14 of the Act, I directed that the proceedings not continue and I referred Mr Pesamino to the Mental Health Review Tribunal (“the Tribunal”): R v Pesamino [2019] NSWSC 1559. Since that time, Mr Pesamino has been accommodated at the Hamden Area of the Metropolitan Remand and Reception Centre (“MRRC”).

5. As set out in s 16 of the Act, the Tribunal was required, as soon as practicable, to determine whether, on the balance of probabilities, he would during the period of 12 months after the finding of unfitness become fit to be tried for the offence.

6. The Tribunal conducted a hearing on 20 March 2020. On 22 April 2020, it determined that, pursuant to s 16 of the Act, Mr Pesamino is presently fit to be tried for the offences for which he has been charged. It also determined that Mr Pesamino suffers from a mental illness. Further, pursuant to ss 46 and 47 of the Act, it determined that he should be detained at the MRRC.

7. On 29 April 2020, the Director of Public Prosecutions (“DPP”) advised the Court that it intends to proceed with the charges against Mr Pesamino. The DPP having so advised, the matter has again been listed before me for the purposes of a further fitness enquiry, as required by s 29 of the Act.

8. The Crown submits that Mr Pesamino is fit to stand trial. Ms Walsh, who appears on behalf of Mr Pesamino, agrees with that submission and adopts the Crown’s submissions. She did not wish to be further heard on the issue.

9. When the matter was last before me, there was no dispute between the parties that Mr Pesamino was unfit to stand trial but I was still required to conduct that inquiry and form my own view. On this occasion, there is no dispute between the parties as to his fitness but, again, I am still required to hold an inquiry and form my own view.

10. The procedure and principles to be applied remain the same as for the first fitness hearing. They are set out in my earlier judgment.

11. In Kesavarajah v The Queen (1994) 181 CLR 230 at 246; [1994] HCA 41 (“Kesavarajah”), Mason CJ, Toohey and Gaudron JJ confirmed that an assessment of whether a person is unfit to be tried is to be determined by reference to the factors identified by Smith J in R v Presser [1958] VR 45 (“Presser”).

12. Again, the background to the alleged offending and Mr Pesamino’s own circumstances and the evidence that was before the Court in November 2019 is set out in my earlier judgment. I will not repeat it here although I have considered all of those matters in evidence for the purposes of this further fitness hearing. It is only necessary to set out the new evidence that has become available since my earlier decision and the reasons for my decision.

The findings of the Tribunal

13. After considering Mr Pesamino’s background and the evidence that I considered at the earlier fitness hearing, the Tribunal had regard to evidence before it which had been obtained subsequent to my earlier determination. In particular, the Tribunal had regard to the evidence from Dr Henderson, Mr Pesamino’s treating psychiatrist.

14. Dr Henderson had referred Mr Pesamino for review by a forensic psychiatrist, Dr Gordon Elliott, on 29 November 2019. At that time, Dr Elliott found Mr Pesamino to be animated and spontaneous, although he continued to experience voices and messages from the television. Dr Elliott considered Mr Pesamino to be more knowledgeable as to the Presser criteria. He agreed with the diagnosis of schizophrenia and considered that Mr Pesamino remained unfit to be tried. However, he suggested he would become fit with education and ongoing treatment.

15. Dr Henderson gave evidence before the Tribunal of the changes in Mr Pesamino’s medication whilst he has been in custody. Dr Henderson noted that, following the change from Clopixol to Aripiprazole, Mr Pesamino reported that the voices had significantly diminished. He briefly heard voices once or twice a week and he continued to experience occasional referential experiences from the television approximately three to four times a week. However, he otherwise denied psychotic symptoms and feelings of paranoia or threat. Dr Henderson opined that this was consistent with antipsychotic treatment and the absence of illicit drug use. He considered that Mr Pesamino had experienced a progressive improvement in his mental state. His insight was evolving.

16. Dr Henderson was able to obtain a history of the offending behaviour from Mr Pesamino. He understood when he was next in Court and knew the name of his lawyer. He understood the function of the Court. Mr Pesamino informed Dr Henderson that he would discuss the matter of a plea with his lawyer and that he was aware of the role of the Judge and the lawyer.

17. He felt that Mr Pesamino was able to attend an extended psychiatric assessment and answer questions coherently and without obvious distraction or cognitive failure. He summarised Mr Pesamino’s fitness as follows:

“Mr Pesamino has received uninterrupted antipsychotic treatment and ceased illicit drug use with a progressive improvement in his mental state and significant attenuation in his psychotic symptoms. He is less irritable, distractible and perplexed. Although he appears to demonstrate some residual cognitive impairment, his attention and concentrating appear improved.

Mr Pesamino is able to provide an account of the offending behaviour, provide instruction to his legal representatives, understand the substantial effect of evidence against him and follow the legal proceeding in a general sense.

As a consequence of Mr Pesamino’s improved mental state with sustained pharmacological treatment, abstinence of illicit drugs and education in relation to the court processes, I believe Mr Pesamino, on balance, is fit for court.”

18. Mr Pesamino gave evidence at the hearing before the Tribunal. He said he felt a lot better because of his medication. Further, during her oral evidence, Dr Henderson opined that Mr Pesamino had a determination to attend Court and see that his matters are dealt with and finalised. He considered that Mr Pesamino could speak logically about his defence options. He was preparing psychologically for Court.

19. The Tribunal determined that on the balance of probabilities Mr Pesamino will, during the 12 months after the unfitness finding, become fit to be tried for an offence. It also determined that he suffers from mental illness.

Further medical evidence

20. Subsequent to the finding of the Tribunal, the DPP has obtained a further report from Dr Adam Martin, Forensic Psychiatrist, dated 3 June 2020. Mr Pesamino was previously examined by Dr Martin by audio visual link on 23 September 2019. I referred to Dr Martin’s earlier evidence at [43]–[55] of my earlier judgment. I noted the following at [54]:

“54.   Dr Martin agreed in evidence that, if Mr Pesamino takes standard anti-psychotic medication in the controlled environment of custody where he does not have access to drugs, then his mental state may improve over time but, as it stands at the moment, Mr Pesamino is unfit to be tried.”

21. On this occasion, Dr Martin reported as to Mr Pesamino’s presentation and progress as follows:

“Mr Pesamino told me that he is “fine”. He said that he is accommodated in Pod 17 in the Hamden Area (an area of the MRRC reserved for inmates with mental health issues). He said that he is in shared cell accommodation and he denied interpersonal conflict with inmates or officers. He said that sometimes he becomes paranoid where he feels people are “out to get me”, at which point he isolates. However, he said that he is generally not distressed and able to exercise, and has normal appetite. He said that he is trying to lose some weight. He said that he reads newspapers and he demonstrated an awareness of current affairs including the COVID-19 situation and recent news events in relation to the rugby league. He did not describe current or recent experience of auditory hallucinations or ideas or reference.”

22. Dr Martin further noted that Mr Pesamino did not appear to be hallucinated. There was no formal thought disorder. He was alert-orientated to the circumstances of the interview and able to concentrate on the interview. No acute cognitive deficits were elicited, although a formal neurocognitive examination was not undertaken. He was not hostile or suspicious during the interview. No frank psychotic phenomena were elicited, although he referred to some paranoia in relation to his safety at times whilst in jail. He appeared well kept and maintained good eye contact. There was no evidence of gross psycho-motor disturbance.

23. He was aware that he had been charged with murder and he had an adequate understanding of what it meant to plead and said he had discussed this with his lawyer. He was considering a plea of mental illness. He had an adequate understanding of the general purpose of Court as being a fact-finding enquiry to test criminal allegations and demonstrated an awareness of the roles of the officers of the Court. He had a reasonable understanding of evidentiary issues.

24. Dr Martin concluded as follows:

“In my view, the weight of information demonstrates that Mr Pesamino has a mental illness of schizophrenia and I have not changed my clinical impression regarding diagnosis, which I outlined in my report (28.09.19).

In relation to fitness, Mr Pessamino’s [sic] mental state has significantly improved from when I saw him before. He was able to give coherent and relevant responses to questions around his understanding of the Australian Legal Process as per the Presser Criteria. He appeared able to concentrate on this interview and answer coherently generally. He demonstrated an awareness of the charges against him, what it means to plead, a general understanding of the purpose of court, understanding of the substantial effect of evidence that might be used, and in my view would be able to follow proceedings and exert his right to challenge, consider legal advice and give instructions to his legal team, and make a version of events known in his defence. There appears to have been a general stability more recently and in my view, he is fit to plead and stand trial.”

Determination

25. Having regard to the recent evidence, there has been an improvement in Mr Pesamino’s mental state since he was declared unfit to be tried. This appears to have resulted from appropriate treatment and controlled use of medication. His improvement is consistent with the earlier medical opinions. For example, Dr Martin had earlier opined that if Mr Pesamino took antipsychotic medication in the controlled environment of custody where he did not have access to drugs, his mental state may improve over time. This has occurred.

26. Whilst Mr Pesamino still suffers from a mental illness, namely schizophrenia, his condition is stable and largely controlled through medication. That is not to say that he does not suffer from some paranoia or does not still hear voices. His illness remains.

27. However, in his current state, he is able to:

1. understand the nature of the charge;

2. plead to the charge and properly instruct his lawyer;

3. understand the nature of the proceedings;

4. follow the course of the proceedings;

5. understand the substantial effect of any evidence that may be given; and

6. make a defence and answer to the charge.

28. As he indicated to Dr Martin, he believes that he has a defence of mental illness.

29. In the circumstances, I find that Mr Pesamino is fit to be tried for the offences for which he is charged. I direct that the Tribunal be so notified.

30. In accordance with s 30(1) of the Mental Health (Forensic Provisions) Act1990 (NSW), I find that the proceedings brought against Mr Pesamino may continue.

31. I note that Ms Walsh informed me that Mr Pesamino would elect to proceed to a trial by judge alone. He needs to be further arraigned.

32. In the circumstances, I list the matter for further directions in the Arraignments List on 3 July 2020.

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Decision last updated: 19 June 2020