Citation: Haydon John Newman v Regina [2007] NSWCCA 103
Court: Court of Criminal Appeal, New South Wales
Date: 18 April 2007
Judge(s): Spigelman CJ, Bell J, Price J
Background
The appellant was charged with three counts of assault and one count of malicious wounding arising from two incidents at a high school in June 2004. The charges related to significant acts of violence, including smashing a glass partition and striking a school deputy principal with a piece of terracotta piping. The appellant was taken to a psychiatric unit following the first incident, absconded, and returned to the school the following day.
A fitness hearing was ordered and in February 2005 a jury found the appellant unfit to be tried. After procedural complications, including a direction for a fresh fitness hearing, the matter eventually returned before Nicholson DCJ in the District Court in July 2006.
Before any fitness hearing could proceed, counsel for the appellant applied under s10(4) of the Mental Health (Criminal Procedure) Act 1990 for an order dismissing the charges and releasing the appellant without conviction. Nicholson DCJ refused that application. The appellant sought to appeal that refusal to the Court of Criminal Appeal.
Legal Issues
- Whether an order under s10(4) of the Mental Health (Criminal Procedure) Act 1990 constitutes an "interlocutory judgment or order" for the purposes of s5F(3)(b) of the Criminal Appeal Act 1912, thereby attracting appeal rights.
- Whether leave to appeal out of time should be granted, given the notice of appeal was filed outside the prescribed time.
- How s10(4) is to be interpreted, specifically what the phrase "inappropriate to inflict any punishment" means and what framework governs the exercise of the discretion to dismiss charges.
- Whether Nicholson DCJ erred in his interpretation of s10(4) or in his exercise of the discretion under that provision.
Decision
Jurisdiction and leave to appeal: The Court granted leave to appeal out of time, noting the Crown did not oppose the extension. The Court also addressed whether the s10(4) order was an "interlocutory" order for purposes of the appeal pathway under s5F(3)(b) of the Criminal Appeal Act 1912. Because a certificate had been issued by Nicholson DCJ under that provision, the Court was able to proceed to consider the appeal.
Interpretation of s10(4): Spigelman CJ held that the phrase "inappropriate to inflict any punishment" in s10(4) requires the court to approach the application by assuming a finding of guilt, then asking whether it would impose any punishment, including the element of punishment inherent in a conviction itself. The provision permits dismissal of a charge before a fitness hearing is even held, but only where the court, on that hypothetical assumption of guilt, would not impose any punishment at all.
Relationship to analogous sentencing provisions: The Chief Justice drew a close analogy between s10(4) and the power under s556A of the Crimes Act 1900, which preceded the current s10 of the Crimes (Sentencing Procedure) Act 1999. The structure and purpose of the provisions were found to be substantially the same, and the general approach developed under those provisions was held to apply equally to s10(4). The court must consider the full range of circumstances relevant to sentencing, on the assumption of a finding of guilt.
Application to this case: The Court found no error in Nicholson DCJ's approach. His Honour had correctly placed himself in the position of a sentencing judge following a hypothetical conviction and concluded that the seriousness of the offending meant punishment would have been called for. The fact that the appellant had already served time in custody did not change that assessment. The appeal was accordingly dismissed.
Orders Made
- Leave to appeal out of time granted.
- Appeal dismissed.
Key Takeaways
- Under s10(4) of the Mental Health (Criminal Procedure) Act 1990, a court considering an application to dismiss charges must assume a finding of guilt and then assess whether any punishment would be appropriate, including the element of punishment implicit in a conviction.
- The phrase "any punishment" in s10(4) encompasses more than custodial sentences: even a conviction without additional penalty carries a punitive element that must be considered.
- The general approach to s556A of the Crimes Act 1900 and s10 of the Crimes (Sentencing Procedure) Act 1999 applies by analogy to s10(4) of the Mental Health (Criminal Procedure) Act 1990, including consideration of the full range of sentencing factors.
- In dismissing the appeal, the Court confirmed that Nicholson DCJ had applied the correct framework by hypothetically positioning himself as a sentencing judge and concluding the offending was serious enough to warrant punishment.
- No error was established in the exercise of the s10(4) discretion simply because the appellant had already spent time in custody before the application was made.
Legislation and Cases Referenced
Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW): ss 4, 5, 6, 7, 8, 9, 10, 11, 11A, 12, 14, 18, 19, 21A, 22, 23
- Criminal Appeal Act 1912 (NSW): s5F
- Crimes (Sentencing Procedure) Act 1999 (NSW): s10
- Crimes Act 1900 (NSW): ss 428F(5), 556A
- Criminal Appeal Rules: rr 5B, 28
Cases:
- Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act (No 3 of 2002) (2004) 61 NSWLR 305
- Director of Public Prosecutions v El Mawas [2006] NSWCA 154
- Director of Public Prosecutions v Mills [2000] NSWCA 236
- Licul v Corney (1976) 180 CLR 213
- R v Lancaster (1991) 58 A Crim R 290
- R v Mifsud (NSWCCA, unreported, 8 November 1995)
- R v Pavia (1993) 67 A Crim R 364
- R v Rhodes (NSWCCA, unreported, 20 November 1996)
- R v Steffan (1993) 30 NSWLR 633
- Ryan v The Queen (2001) 206 CLR 267
- Smith v The Queen [2007] NSWCCA 39