AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 23 June 2016

NSW Police v Everingham

[2016] NSWLC 10

Assault & violencePublic order & justice offences
CRIMINAL PROCEEDINGS APPLICATION FOR MENTAL HEALTH DIVERSION ASSAULT ASSAULT OCCASIONING ACTUAL BODILY HARM INTIMIDATION WHETHER ACTS IMPULSIVE

Citation: NSW Police v Everingham [2016] NSWLC 10
Court: Local Court of NSW (Dubbo)
Date: 23 June 2016
Judge(s): Stewart LCM

Background

The defendant faced three charges arising from an incident at a Dubbo Kart Club board meeting: common assault, assault occasioning actual bodily harm, and intimidation. During the meeting, the defendant verbally abused another board member, punched him repeatedly to the head and face on two separate occasions, made threatening remarks, and then threw a schooner glass containing beer at the victim from a distance of approximately three metres. The glass struck another glass, both shattered, and the victim sustained a bleeding laceration of 2 to 3 centimetres, along with glass shards to his head, arm, and body.

The defendant applied to be dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990, on the basis that he had been diagnosed with Major Depressive Disorder. The application relied on a psychological report, two letters from a treating doctor, and agreed facts.

  • Whether the defendant met the threshold eligibility requirements under section 32(1)(a), specifically whether he suffered from a mental condition for which treatment is available in a mental health facility
  • Whether, having regard to the nature and seriousness of the offending, it would be more appropriate to deal with the defendant under section 32 rather than according to law
  • Whether the psychological report and proposed treatment plan were adequate to support the application

Decision

Stewart LCM applied the three-step framework from DPP v El Mawas [2006] NSWCA 154. The first step required a finding of fact as to the defendant's mental condition. Rather than making that finding at the outset, the Magistrate assumed the defendant met the condition threshold and proceeded directly to the second question: whether it was more appropriate to deal with him under section 32 than in accordance with the law.

On the balancing exercise required by that second question, the Magistrate drew on Confos v DPP [2004] NSWSC 1159, which frames the task as weighing two competing public interests: the purposes of punishment and community protection on one side, and the public interest in diverting mentally disordered offenders from the criminal justice system on the other. The Magistrate assessed the common assault at around mid-level objective seriousness, the intimidation below mid-level, and the assault occasioning actual bodily harm above mid-level. The submission that the conduct was impulsive and linked to the defendant's mental condition was given limited weight. The escalating pattern of violence, the use of a glass as a weapon, and the continuing threats after each episode of violence all pointed strongly against diversion. The Magistrate found the public interest in punishment and community protection was very high, and declined to exercise the section 32 discretion.

The Magistrate separately identified deficiencies in the supporting material that independently undermined the application. The psychological report did not address the requirements of section 32(1)(a) and contained no statement that Major Depressive Disorder constituted a mental illness, nor any evidence that the condition was one for which treatment was available in a mental health facility. The Magistrate noted, citing Edwards v DPP [2012] NSWSC 105, that this is a fundamental jurisdictional requirement that cannot be assumed or inferred. The proposed treatment plan was also found to be generic and non-specific to the defendant, and did not meet the standard of a "clear and effective" plan as described in Perry v Forbes and Storey (unreported, NSWSC, 21 May 1993).

Orders Made

  • The section 32 application was refused.
  • The defendant subsequently pleaded guilty and was sentenced as follows:
  • Common assault: fined $1,000
  • Assault occasioning actual bodily harm: 8 months imprisonment suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999
  • Intimidation: section 9 bond for 2 years with supervision, with a condition of anger management treatment recommended
  • On appeal, the District Court (Baly J) re-sentenced the defendant on the assault occasioning actual bodily harm charge to a section 9 good behaviour bond for 2 years and 6 months with supervision and a condition of anger management treatment.

Key Takeaways

  • Refusing a section 32 application turns on a structured three-step analysis: eligibility, appropriateness of diversion, and choice of action. The Magistrate here declined to proceed past the second step, finding diversion plainly inappropriate on the facts.
  • The seriousness of the offending conduct carries significant weight in the balancing exercise. An escalating pattern of violence, the deployment of an improvised weapon, and continuing threats after each assault can collectively push the public interest in punishment to a level that outweighs the case for diversion.
  • Under section 32(1)(a)(iii), it is a jurisdictional requirement that the defendant suffer from a mental condition for which treatment is available in a mental health facility. That requirement cannot be assumed or inferred from a diagnosis alone, and a psychological report that does not address it will be deficient.
  • A treatment plan that is generic and non-specific to the defendant does not satisfy the standard described in Perry v Forbes and Storey. A plan must be clear, effective, and directed at minimising the risk of reoffending.
  • Submissions characterising serious violence as impulsive will carry limited persuasive force where the facts reveal repeated, sustained, and escalating conduct rather than a single reactive act.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Crimes Act 1900 (NSW), ss 59(1), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 9, 12, 21A

Cases:
- DPP v El Mawas [2006] NSWCA 154
- Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
- Edwards v DPP [2012] NSWSC 105
- Khanwaiz v R [2012] NSWCCA 168
- Nowak v The Queen (2008) 183 A Crim R 526
- Perry v Forbes and Storey (unreported, Supreme Court of NSW, 21 May 1993)