R v Pesamino

[2019] NSWSC 1559

Supreme Court

New South Wales

Medium Neutral Citation:	R v Pesamino [2019] NSWSC 1559
Hearing dates:	4 November 2019
Date of orders:	08 November 2019
Decision date:	08 November 2019
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1) Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1900 (NSW) I refer Mr Pesamino to the Mental Health Review Tribunal. (2)   I direct that Mr Pesamino be remanded in custody. (3)   I direct that these proceedings be adjourned until the determination of the Mental Health Review Tribunal has been given effect. (4)   I order that the matter be listed for mention only in the next arraignments list of the Court at 10am on Friday 6 December 2019. (5)   I direct that the Registrar of the Court forward to the Mental Health Review Tribunal the exhibits tendered in these proceedings as well as the Transcript and this Judgment.
Catchwords:	MENTAL HEALTH — criminal proceedings — fitness to be tried — “Presser” principles — accused unfit to be tried
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 128(2) Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5, 10, 11, 12, 13, 14, 16
Cases Cited:	Eastman v R (2000) 203 CLR 1; [2000] HCA 29 Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 R v Presser [1958] VR 45
Category:	Principal judgment
Parties:	Regina (Crown) Dick AJ Pesamino (Accused)
Representation:	Counsel: Mr A Robertson (Crown) Ms 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. On 15 November 2018 the accused, Asalemo Dick AJ Pesamino, was charged with murdering Brett Nicholls at Villawood on 3 May 2018. Mr Pesamino was also charged with assaulting a witness, Gregory McDougall, at Villawood on 3 May 2018 and further charged with an earlier assault of Mr Nicholls on 27 March 2018. Exemptions in respect of the assault charges have been granted pursuant to s 128(2) of the Criminal Procedure Act 1986 (NSW). On 17 October 2018 Mr Pesamino was committed for trial.

2. The matter came before the Court on 4 November 2019 for the purposes of determining Mr Pesamino’s fitness to be tried in accordance with Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”). Mr Pesamino’s fitness to be tried was raised by him: s 5 of the Act. The Court, being satisfied that the question of unfitness was raised in good faith, ordered an inquiry in order to determine whether Mr Pesamino is unfit to be tried for the offences for which he is charged: s 10 of the Act.

3. As set out in s 11 of the Act, the question of a person’s unfitness to be tried is to be determined by a judge alone. Any determination under the section must include the principles of law applied and the findings on fact relied upon.

Background Facts

4. The accused and the deceased resided in the same block of units at 27 Gundaroo Street, Villawood. The deceased resided at Unit 18 for approximately 18 years and the accused had resided at Unit 16 since approximately March 2018.

5. On 27 March 2018 there was an incident between the accused and the deceased at which time the accused allegedly grabbed the deceased by the throat and stomped on the deceased’s toe. The deceased sought treatment for a broken toe.

6. On 3 May 2018 at approximately 5.30pm the accused is alleged to have attacked the deceased within the deceased’s unit. The accused was observed by a witness inside the deceased’s unit on top of the deceased. When the witness walked in the accused pushed him out of the way and ran from the unit complex. By the time the Police and Ambulance officers arrived, the deceased had no pulse and was not breathing. He was unable to be revived and was pronounced dead at 5.58pm.

7. At approximately 5.50pm the accused was located lying in a gutter with his head down facing a drain. He was moaning but not very responsive. After he was handcuffed, he woke and started screaming, thrashing his body and kicking his legs. He was subsequently sedated by Ambulance officers. He was transferred to an Ambulance and secured to a stretcher at which point he became abusive. He then fell asleep.

8. He was taken to Bankstown Police Station and participated in an electronically recorded interview. During the interview, the accused stated that he received a disability pension for his schizophrenia and that he was on medication receiving injections every two weeks. He had last received an injection three and a half weeks prior to 3 May 2018. He admitted to using a bit of pot and a bit of ice that morning. He complained that his house kept getting broken into and made reference to “that bloke” and having to sort it out himself. When he was asked what happened that night he said “Fucked if I know. I said I was drunk”. He said that he had alcohol, namely a whole bottle of vodka and ice. He thought his unit had been broken into the night before. He said he was upset with himself and “he was pissed off because of something out of character, something he wouldn’t do being him hurting somebody else with his hands”.

9. The accused was diagnosed with schizophrenia around 2013 and had suffered from mental health problems before that. He had been receiving treatment for that condition since that time, although the regularity and success of the treatment is not certain.

10. The accused submits that he is unfit to be tried for the offences for which he is charged.

11. The accused has been examined by two qualified psychiatrists, being Dr Stephen Allnutt and Dr Adam Martin, both of whom offer a similar diagnosis and opinion as to the accused’s fitness for a trial. On 17 October 2008, Mr Pesamino was also assessed by Dr Gerald Chew, a consultant psychiatrist of Justice Health and Forensic Mental Health Network.

12. The Crown agrees that the accused is unfit to stand trial. Indeed, Ms Walsh, who appears on behalf of the accused, adopted the Crown’s submissions on the question of unfitness. In addition to the evidence contained in his report, Dr Adam Martin gave oral evidence.

13. Although there is no dispute between the parties as to Mr Pesamino’s fitness to stand trial, I am required to conduct the inquiry referred to in the Act and determine his unfitness.

14. For the reasons set out in this judgment, I am satisfied that Mr Pesamino is unfit to be tried and that he should be referred to the Mental Health Review Tribunal in accordance with s 14 of the Act.

Fitness to be tried

15. Section 12(1) of the Act enables Mr Pesamino to be represented in the inquiry as he was today by Ms Walsh. Section 12(2) provides that the inquiry is not to be conducted in an adversarial manner and section 12(3) specifies that there is no onus of proof imposed on any parties.

16. If, following an inquiry, the person is found to be unfit to be tried the Court must refer the matter to the Mental Health Review Tribunal: s 14 of the Act. If the matter is referred to the Tribunal then the Tribunal must determine whether the accused person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offences: s 16 of the Act. If, following that inquiry an accused person is found to be fit to be tried for the offences, the proceedings against him are recommenced or continued: s 13 of the Act.

17. Importantly, the Act allows for only two outcomes following an inquiry being either that the accused person is found fit to be tried: s 13 of the Act or that the accused person is found unfit to be tried :s 14 of the Act. It is thus necessary for the Court to make a finding one way or the other rather than merely determine the matter on any onus of proof issue or make a finding that the Court could not be satisfied as to fitness or unfitness.

18. 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”).

19. In Presser, Smith J identified the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice: at [48]. In Kesavarajah those standards were identified as requiring the ability to:

1. Understand the nature of the charge;

2. Plead to the charge and to exercise the right of challenge;

3. Understand the nature of the proceedings, namely that it is an inquiry as to whether the accused committed the offence charged;

4. Follow the course of the proceedings;

5. Understand the substantial effect of any evidence that may be given in support of the prosecution; and

6. Make a defence or answer the charge.

20. If the Court is satisfied that, having regard to the accused’s mental illness, he does not have the ability to understand, plead and undertake each of the matters referred to as those minimum standards then the Court should be satisfied that he is unfit to be tried. This is important in this matter as it may be that on one view Mr Pesamino has an ability or capacity to undertake some tasks essential to his defence and even understand the nature of the proceedings but the expert medical opinion is to the effect that he is unfit to be tried for a number of different reasons.

The Facts and Evidence

21. Mr Pesamino was born on 27 October 1986. At the time of the relevant events he was living alone in public housing. He was single and in receipt of the disability support pension. I am uncertain as to when he was first diagnosed with schizophrenia. It may have been between 2011 and 2013. His medical records confirm a long history of substance abuse and excessive consumption of alcohol with some associated violence.

22. For example, the accused presented at hospital in February 2010, having punched through a window. It was thought that he had Post-Traumatic Stress Disorder and a psychotic episode related to trauma, exacerbated by alcohol and drug use.

23. He was hospitalised for two periods in 2011 being in January and July 2011. There was a mental health assessment dated 2 August 2011. He had been brought to the emergency department by Police after assaulting his sister and threatening his family and banging his head. His family reported an increase in alcohol and drug use and agitation. He was experiencing paranoia. He reported memories of child sexual abuse under intoxication.

24. Then in 2013 he was diagnosed with drug and alcohol dependence and substance abuse. The discharge summary of 27 March 2013 again noted a history of drug induced psychosis and violence with previous admissions. His father was concerned about his misuse of drugs and alcohol and difficulty managing him.

25. Between 19 September 2013 and 21 January 2014 he was again admitted with a history of paranoid schizophrenia, substance misuse, antisocial behaviour and developmental trauma. His father had requested mental health support.

26. This pattern of attendances at Hospital, mental health assessments, treatment, instances of violence or aggression and anger as well as concern from his family continued right up until 2018. He has spent various periods in mental health units, no doubt with the purpose of stabilising his condition.

27. Mr Pesamino’s father used to attend hospital with him on a regular basis, expressing concern as to his son’s mental health and seeking assistance. Mr Pesamino’s father died in February 2018.

28. For each of the years 2014 to 2018, there are medical records referring to the diagnosis of schizophrenia as well as substance abuse.

29. Mr Pesamino was last assessed prior to the events of 3 May 2018 on 5 April 2018. At that time there was a diagnosis of continuing schizophrenia.

30. On 17 October 2018 Mr Pesamino was examined by Dr Gerald Chew, a Senior Consultant General & Forensic Psychiatrist. Dr Chew prepared a report addressed to the Bankstown Local Court. Dr Chew opined that it became clear quickly during his examination that Mr Pesamino suffered from severe mental illness and he had significant poverty of thought content limiting the interview. Mr Pesamino identified to Dr Chew that at the time of his offending behaviour he had been off his medication for about six months and was experiencing voices and a relapse of his illness. He said he had also relapsed into drug use. He referred to being the subject of childhood sexual abuse. The veracity of that suggestion is not known.

31. Dr Chew opined that Mr Pesamino clearly had schizophrenia and that he was actively psychotic. He considered that he should be in a secure mental health facility where more longitudinal assessment, risk assessment and a management plan can be formulated prior to release into the community.

32. For the purposes of this inquiry, Mr Pesamino’s solicitors arranged for him to see Dr Stephen Allnutt on 11 March 2019. Dr Allnutt conducted an assessment and evaluation through the audio visual connection to Parklea Prison on 11 March 2019. At the time, Mr Pesamino informed Dr Allnutt that he was taking antipsychotic medication, Zyprexa, and was getting an intramuscular antipsychotic injection. Mr Pesamino indicated to Dr Allnutt that he was doing “okay, I suppose” although he said he continued to hear voices. He heard demons talking about how his life was not worth living and he could hear the demons talking about him (in the third person) to somebody else. He heard voices randomly every two to three days. They were loud and came from outside his head and he experienced them as real. He said that he had first heard them in his late teens or early twenties. When he was watching TV, as if somebody was trying to talk to him, the voices were sending messages through the TV.

33. When Dr Allnutt sought to clarify his understanding of the charges against him, Mr Pesamino initially said he did not remember and was not sure with what he had been charged. He thought it was assault. When Dr Allnutt clarified that it was murder, he seemed to be somewhat surprised. He said that he did not mean for the victim to die and, “if it was him, he was sorry, he didn’t remember what happened. He was in psychosis”. He said he was going to plead not guilty due to mental illness for his schizophrenia. He said that that was what his lawyer had told him to say.

34. According to Dr Allnutt, Mr Pesamino was not able to explain what not guilty meant. He was then asked as to the consequences of a finding of guilty and he said he was not too sure; that they go to jail. He also said he was not too sure of the role of the lawyer except that he talks for him in front of Court.

35. Mr Pesamino said to Dr Allnutt that at the time of his alleged offending he was using cannabis and smoking it daily. He had been doing so regularly since the age of 22. He had taken ice for a few years and stopped about six months before the alleged offence, although he gave a different version in answer to a different question. He said he could not recall meeting the deceased before but on 3 May 2018 he was hearing voices and they were loud and clear.

36. Dr Allnutt detailed Mr Pesamino’s account of events relating to the incident, noting that Mr Pesamino said that he had no recollection of the alleged offence or of being in the deceased’s unit. He remembered waking up in the Police van and hearing voices, including the voice of Mary MacKillop. He said he could not recall the alleged offence and he volunteered that he was in an induced psychosis.

37. In his report, Dr Allnutt reviews Mr Pesamino’s extensive history in terms of the mental health treatment, admissions to various institutions and consistent diagnosis of schizophrenia. Dr Allnutt also detailed Mr Pesamino’s regular treatment since being in custody. Dr Allnutt accepted that Mr Pesamino has a chronic psychotic disorder, likely paranoid schizophrenia (categorised by auditory hallucinations, persecutory delusional beliefs, ideas of reference and thought disorder), aggravated by a chronic substance abuse disorder (categorised by the use of cannabis on occasions, methamphetamine, cocaine and MDMA).

38. He opines that Mr Pesamino is “on balance, unfit to stand trial”. He opines that Mr Pesamino seemed confused about the nature of the charges. He seemed to be ambivalent in his decision-making. He may have had the capacity to understand the charges and understands that he is charged with murder, although he initially thought it was an assault.

39. However, Dr Allnutt says that his capacity to plead to the charge is questionable. He had difficulty understanding the roles of the prosecution, the judge and the jury which raised questions about his ability to exercise his right of challenge, although he ultimately concluded that with the assistance of Counsel he would be able to do this.

40. Dr Allnutt says that Mr Pesamino has the capacity to understand the general nature of the proceedings but he would have difficulty following the course of the proceedings and making a defence to answer the charge by giving instructions to his lawyer. He may be able to decide what defence he will rely on and may be able to make his version of the facts known to the Court (that is he has no recollection).

41. Dr Allnutt opines that his fitness to stand trial, as at the time of examination, was marginal although he was optimistic that he might recover from his mental illness, as long as he maintains compliance with anti-psychotic medication and abstains from the use of substances. It is not necessary, at this stage, to further consider Dr Allnutt’s comments on Mr Pesamino’s mental state at the time of the actual offending.

42. Dr Allnutt prepared a second report dated 15 October 2019. He had reviewed further medical material, including progress clinical notes from Justice Health. He was also asked to review the report of Dr Martin dated 28 September 2019. He noted Dr Martin’s similar conclusion and said that Dr Martin’s report did not cause him to alter his earlier opinion.

43. At the request of the Crown Mr Pesamino was examined by Dr Adam Martin, a Forensic Psychiatrist, also by audio visual link on 23 September 2019. He has prepared a report dated 28 September 2019. Dr Martin gave evidence on 4 November 2019.

44. When assessed by Dr Martin, Mr Pesamino said that he was not well, he was sick and that he hears voices. He said that it happened every now and again, every couple of days. When being asked about common psychotic experiences such as thought interference, he said “… I think so, there’s a few mind readers out there, not too sure, I ignore it sir”. He said he could not sleep at night because he thought the demons were trying to get him and that someone was going to get him. He said he had had that experience for the past six months.

45. He was unable to give a specific answer about his medication but agreed that he had been given an injection and took tablets which he identified as Zyprexa. He claimed to be unable to remember anything about his diagnosis or previous mental health treatment or admissions.

46. Mr Pesamino claimed to be unaware of the details of the most serious charge stating that he could not remember. He was unsure of the name of his lawyer and his next Court date and what it means to plead. He was unable to give an explanation of the general purpose of Court or demonstrate that he understood that Court is the purpose of fact-finding in relation to criminal allegations. He was unable to give a version of events, only suggesting that he was not too sure that he would talk to his lawyer. He said he could not remember details of the offending but he said he blanked out and was having a Schizophrenic attack. His speech was monosyllabic, brief and he gave very vague responses. There was a vague reference to paranoid thoughts and demons and a general poverty of expressed thought. His affect was consistent with experience of hallucinations and hearing voices during the interview.

47. Dr Martin reviewed the Community Mental Health notes from the South Western Sydney Local Health District, noting the multiple entries and correspondence outlining his mental health history. He accepted that Mr Pesamino had been diagnosed with paranoid schizophrenia and substance use disorder. He had been a client of the Bankstown Mental Health Service since 2011. He referred to the diagnosis of a drug-induced psychosis and references to acting violently and threateningly at home. He referred to the documentation about his father contacting Mental Health Services because of his concern about Mr Pesamino’s deteriorating mental health.

21. Dr Martin accepted the diagnosis of schizophrenia. As he says, schizophrenia is considered a major mental illness and has been considered by the Courts to be a disease of the mind. It is essentially a description of a chronic vulnerability to experience of psychosis. It is associated with significant impairment and disability. Psychosis is considered a serious mental disorder where a person has impaired judgment and decision-making and is prone to acting in a disinhibited and impulsive manner. Major mental illness is considered a risk factor for violence.

22. Dr Martin said that, based on his assessment, he was unable to be satisfied that Mr Pesamino has an awareness of the charge against him, what it means to plead or understands the general purpose of the Court, evidentiary issues and his right to challenge. He did note an inconsistency between how he presented at interview, compared with other evidence, including a Police interview in which Dr Martin has noted that Mr Pesamino appeared to be reasonably lucid and coherent.

23. I raised this issue directly with Dr Martin so as to gain a better understanding of whether there was any doubt about the nature and extent of Mr Pesamino’s mental illness. He confirmed that schizophrenia waxes and wanes or fluctuates. Certain people can remain very mentally ill for years, whereas others might improve when they take medication.

24. Dr Martin considered that Mr Pesamino did look unwell and his responses were quite characteristic of someone who is not well. Although he had only seen Mr Pesamino once, on his review of the notes, it was apparent that he was unwell most of the time and that he would get more unwell than others, especially if he used drugs. By this, I took Dr Martin to mean that most of the time he was suffering from symptoms typical of schizophrenia and that his condition was very likely to be aggravated by the taking of drugs.

25. Further, he confirmed that the taking of his medication would merely stabilise his condition leading to less waxing and waning, rather than actually rendering him fit to stand trial.

26. Dr Martin did identify the potential for Mr Pesamino to benefit from the prescription of the atypical anti-psychotic medication, Clozapine, which is useful in treatment resistant schizophrenia. However, he said that Mr Pesamino needed to be treated in an appropriate secure mental health unit and that there were some side effects of Clozapine. He felt that the best place for treatment and particularly the administration of Clozapine would be in a hospital setting. He noted that Clozapine worked in 70 per cent of cases where other medications had not worked but that it requires intensive medical monitoring because it has potentially life-threatening side effects. It could only be taken orally.

27. 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.

28. His oral evidence is thus consistent with para 32 of his report in which he discusses fitness issues. All that Dr Martin could really say is that with a different form of treatment in a more controlled environment, there may be some hope for improvement but based on his review of his current state, he is unfit to be tried.

29. The expert medical evidence is thus generally consistent as to the nature of Mr Pesamino’s mental health condition and its effects. There is some slight difference of view between Dr Martin and Dr Allnutt but it is clear that neither doctor considers that Mr Pesamino would be fit to be tried, having regard to the factors identified in Kesavarajah.

Findings

57. In all of the circumstances, I accept that Mr Pesamino is suffering from paranoid schizophrenia, aggravated by a chronic substance abuse disorder. His condition has in part been managed by medication and appropriate treatment but even when stabilised through medication, his condition is not such as to render him fit to be tried. It may be, as suggested by Dr Martin, that administration of Clozapine would lead to some improvement in his condition but having regard to the issues arising out of the administration of Clozapine as referred to by Dr Martin, that will be a matter for the health professionals in due course.

58. There is a slight variance in opinion between Dr Martin and Dr Allnutt as to the reasons that Mr Pesamino is not fit to be tried and perhaps as to the extent of his mental illness but both doctors conclude that he is unfit to be tried. He remains confused about the nature of the charges against him and at best, his capacity to plead to the charges is questionable. He may have some limited understanding of the nature of the proceedings and have an ability to follow the course of the proceedings on a limited basis, but in view of his problems such as concentration problems, working memory deficits and his general hearing of voices, he would not be able to follow the course of the proceedings. The fact that his condition may wax and wane would impact upon his ability in this regard.

59. Further, I do not consider that he would be able to properly prepare a defence or give his Counsel appropriate instructions to answer the charges against him.

60. I should emphasise that there is much more to Mr Pesamino’s illness than a condition which might cause him to be delusional about the trial or make it difficult for him to have an amicable or trusting relationship with Counsel: see Eastman v R (2000) 203 CLR 1; [2000] HCA 29 at [26]. As such, whilst it may be possible that Mr Pesamino has a limited ability or understanding in respect of some of the factors referred to in Presser, the chronic nature of his paranoid schizophrenia with its symptoms and consequences means that he would not be able to understand with what he has been charged to enter a plea or even follow the proceedings throughout the proceedings and understand the substantial effect of the evidence.

61. In these circumstances, I find that Mr Pesamino is unfit to stand trial. As set out in s 14 of the Act, the proceedings must not continue at this time and I must refer Mr Pesamino to the Mental Health Review Tribunal.

Orders

62. I make the following orders:

1. Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1900 (NSW) I refer Mr Pesamino to the Mental Health Review Tribunal.

2. I direct that Mr Pesamino be remanded in custody.

3. I direct that these proceedings be adjourned until the determination of the Mental Health Review Tribunal has been given effect.

4. I order that the matter be listed for mention only in the next arraignments list of the Court at 10am on Friday 6 December 2019.

5. I direct that the Registrar of the Court forward to the Mental Health Review Tribunal the exhibits tendered in these proceedings as well as the Transcript and this Judgment.

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Decision last updated: 08 November 2019