Wheadon v The Queen - [2019] NSWDC 643

District Court

New South Wales

Medium Neutral Citation: Wheadon v R [2019] NSWDC 643
Hearing dates: 20 August 2019, 22 August 2019
Decision date: 22 August 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
1. Convictions and sentencing orders of the Magistrate are quashed.
2. In accordance with the provisions of Pt 3, Mental Health (Forensic Provisions) Act 1990, I make the following orders; the defendant remain under the care of Dr Sam Nepalati; he remains under the care of Mr John Nolan, clinical psychologist; he accepts referral to a consultant psychologist pursuant to the mental health care plan, to review treatment of his depression and PTSD; he accepts medication as directed by his treating doctors; he remains under the care of his cardiologist. These orders are in place for a period of six months from 20 August 2019.
Catchwords: CRIME – appeal from Local Court to District Court – appeal against sentence- apprehended violence orders – domestic violence – intimidation of police officer – orders sought be made pursuant to s32 Mental Health (Forensic Provisions) Act 1990 – PTSD – chronic anxiety – major depressive disorder – failure in duty of care by NSW Police Service – causal relationship between mental condition and matters before the court
Legislation Cited: Bail Act 2013
Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Charara v DPP & Ors [2001] NSWCA 140
DPP (Cth) v De La Rosa [2010] NSWCCA 194
DPP v Soliman [2013] NSWSC 346
El Mawas (2006) NSWCCA 154
R v Engert (1995) 84A CrimR 67
R v Hemsley [2004] NSWCCA 228
Category: Principal judgment
Parties: Gregory Wheadon (Appellant)
Regina (Crown)
Representation:
Counsel:
Mr G Kumarasinhe (Appellant)
Solicitors:
Mr Bell (Appellant)
Mr Wiggins, Director of Public Prosecutions (Crown)

File Number(s): 2017/00343992
Publication restriction: Names of the appellant's children

Judgment

In relation to various orders that were made at the Local Court on either 27 February 2019 and or 26 March 2019, this matter is a very interesting matter. There has been a huge volume of material to absorb in a relatively short period of time so I trust I can do justice to everything that I have read and I have read a lot of material, including 120 odd page judgment of the District Court of New South Wales as delivered by a former colleague of mine, his Honour Judge Cooper. The matters that the appellant appeals against are matters that arose over a period of time between 26 August 2017 and 11 April 2018.
The appeal is one against sentence; it is a “severity appeal”. But it follows from the argument of the parties, particularly the argument of the appellant, that what is sought in essence is to set aside the effect of the convictions recorded by the Magistrate. The crimes that the appellant pleaded guilty to at the Local Court include an offence of assault committed on 26 August 2017. The victim was his then wife. There is a further offence of assault…

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 Wheadon v The Queen

Details

AGLC: Wheadon v The Queen [2019] NSWDC 643
Case: [2019] NSWDC 643
Decision Date: 22 August 2019

CaseChat Overview and Summary

In the matter of Wheadon v The Queen, the appellant brought an appeal against his sentence, which was imposed by a magistrate in the Local Court of New South Wales. The appellant was convicted of several offences, including intimidation of a police officer, possession of a prohibited weapon, and failure to comply with an apprehended violence order. The appellant also sought orders under the Mental Health (Forensic Provisions) Act 1990 on the grounds that he suffered from PTSD, chronic anxiety, and major depressive disorder. The central legal issue before the District Court was whether the appellant's mental health conditions were causally related to the matters before the court, which would allow for the making of forensic orders under the Act. The court also needed to consider whether there was a failure in the duty of care by the NSW Police Service in relation to the appellant's mental health issues.

The District Court found that there was a causal relationship between the appellant's mental health conditions and the matters before the court. The court was satisfied that the appellant's PTSD, chronic anxiety, and major depressive disorder were significantly impacted by his interactions with the police and the legal proceedings. The court noted that the appellant's mental health issues were exacerbated by his experiences, and there was evidence of a failure in the duty of care by the NSW Police Service in relation to his mental health needs. Based on these findings, the court quashed the convictions and sentencing orders of the magistrate and made orders for the appellant's ongoing mental health care for a period of six months. The orders included continued care under his treating doctors, acceptance of referrals for psychological treatment, adherence to medication as directed, and ongoing care under his cardiologist.

Orders

Orders of the court

1. Convictions and sentencing orders of the Magistrate are quashed.

2. In accordance with the provisions of Pt 3, Mental Health (Forensic Provisions) Act 1990, I make the following orders; the defendant remain under the care of Dr Sam Nepalati; he remains under the care of Mr John Nolan, clinical psychologist; he accepts referral to a consultant psychologist pursuant to the mental health care plan, to review treatment of his depression and PTSD; he accepts medication as directed by his treating doctors; he remains under the care of his cardiologist. These orders are in place for a period of six months from 20 August 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Wheadon v R [2019] NSWDC 643
Hearing dates:	20 August 2019, 22 August 2019
Decision date:	22 August 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	1. Convictions and sentencing orders of the Magistrate are quashed. 2. In accordance with the provisions of Pt 3, Mental Health (Forensic Provisions) Act 1990, I make the following orders; the defendant remain under the care of Dr Sam Nepalati; he remains under the care of Mr John Nolan, clinical psychologist; he accepts referral to a consultant psychologist pursuant to the mental health care plan, to review treatment of his depression and PTSD; he accepts medication as directed by his treating doctors; he remains under the care of his cardiologist. These orders are in place for a period of six months from 20 August 2019.
Catchwords:	CRIME – appeal from Local Court to District Court – appeal against sentence- apprehended violence orders – domestic violence – intimidation of police officer – orders sought be made pursuant to s32 Mental Health (Forensic Provisions) Act 1990 – PTSD – chronic anxiety – major depressive disorder – failure in duty of care by NSW Police Service – causal relationship between mental condition and matters before the court
Legislation Cited:	Bail Act 2013 Crimes (Sentencing Procedure) Act 1999 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Charara v DPP & Ors [2001] NSWCA 140 DPP (Cth) v De La Rosa [2010] NSWCCA 194 DPP v Soliman [2013] NSWSC 346 El Mawas (2006) NSWCCA 154 R v Engert (1995) 84A CrimR 67 R v Hemsley [2004] NSWCCA 228
Category:	Principal judgment
Parties:	Gregory Wheadon (Appellant) Regina (Crown)
Representation:	Counsel: Mr G Kumarasinhe (Appellant) Solicitors: Mr Bell (Appellant) Mr Wiggins, Director of Public Prosecutions (Crown)
File Number(s):	2017/00343992
Publication restriction:	Names of the appellant's children