R v Arbolino [2020] NSWDC 247

District Court New South Wales

Medium Neutral Citation: R v Arbolino [2020] NSWDC 247 Hearing dates: 18 May 2020 Date of orders: 22 May 2020 Decision date: 22 May 2020 Jurisdiction: Criminal Before: Bright DCJ Decision: Orders at [53] Catchwords: Fitness inquiry - Presser test - agreement of experts Legislation Cited: Crimes Act, 1900 Mental Health (Forensic Provisions) Act, 1990 Cases Cited: R v Presser (1958) VR 45 Kesavarajah v R (1994) 181 CLR 245; [1994] HCA 41 Category: Principal judgment Parties: Regina (Crown) David Arbolino (Accused) Representation: Mr G Brady (Counsel for Accused) Mr D Henschell (Solicitor Advocate for Crown) File Number(s): 2017/00380936 Publication restriction: Section 578A, Crimes Act - A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Judgment 1. David John Arbolino, the accused, 39 years, has been charged with 3 offences of sexual intercourse without consent (section 61I, Crimes Act), one offence of attempt sexual intercourse without consent (section 61I/section 344A(1), Crimes Act) and, in the alternative, one offence of indecent assault (section 61L, Crimes Act).

Procedural History 1. On 22 February 2019 the accused appeared before Gosford District Court and was arraigned. The matter was listed for trial on 2 December 2019. 2. On 18 November 2019, the question of the accused's fitness to be tried was raised by the accused's legal representatives. The trial date was vacated and a new trial date of 18 May 2020 was allocated. 3. On 13 February 2020, that trial date was vacated and the matter was listed for a fitness inquiry. 4. On 18 May 2020, the fitness inquiry was conducted. Mr Henschell, Solicitor Advocate appeared for the Crown and Mr Brady of Counsel appeared for the accused. 5. I note at the outset that the experts are in agreement that the accused is unfit to be tried as a result of a likely permanent neurocognitive disorder caused by a motorbike accident in 2013.