R v Pesamino [2020] NSWSC 767

Supreme Court New South Wales

Medium Neutral Citation: R v Pesamino [2020] NSWSC 767 Hearing dates: 12 June 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) I find that Mr Pesamino is fit to be tried for the offences for which he is charged. (2) I direct that the Tribunal be so notified. (3) In accordance with s 30(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), I find that the proceedings brought against Mr Pesamino may continue. (4) I list the matter for further directions in the Arraignments List on 3 July 2020. Catchwords: MENTAL HEALTH — criminal proceedings — fitness to be tried — "Presser" principles — accused fit to be tried Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 2, ss 14, 16, 29, 30, 46, 47 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 R v Pesamino [2019] NSWSC 1559 R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina (Crown) Dick AJ Pesamino (Accused) Representation: Counsel: A Robertson (Crown) 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. This matter comes before the Court for a second hearing as to the accused's fitness to be tried in accordance with Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"). 2. On 15 November 2018, the accused, Asalemo Dick AJ Pesamino, was charged with murdering Brett Nichols at Villawood on 3 May 2018. He was also charged with assaulting a witness, Greg McDougall, at Villawood on 3 May 2018 and further charged with an earlier assault of Mr Nichols on 27 March 2018. 3. The matter came before the Court on 4 November 2018 for a fitness hearing. 4. On 8 November 2018, I found that Mr Pesamino was unfit to stand trial. In accordance with s 14 of the Act, I directed that the proceedings not continue and I referred Mr Pesamino to the Mental Health Review Tribunal ("the Tribunal"): R v Pesamino [2019] NSWSC 1559. Since that time, Mr Pesamino has been accommodated at the Hamden Area of the Metropolitan Remand and Reception Centre ("MRRC"). 5. As set out in s 16 of the Act, the Tribunal was required, as soon as practicable, to determine whether, on the balance of probabilities, he would during the period of 12 months after the finding of unfitness become fit to be tried for the offence. 6. The Tribunal conducted a hearing on 20 March 2020. On 22 April 2020, it determined that, pursuant to s 16 of the Act, Mr Pesamino is presently fit to be tried for the offences for which he has been charged. It also determined that Mr Pesamino suffers from a mental illness. Further, pursuant to ss 46 and 47 of the Act, it determined that he should be detained at the MRRC. 7. On 29 April 2020, the Director of Public Prosecutions ("DPP") advised the Court that it intends to proceed with the charges against Mr Pesamino. The DPP having so advised, the matter has again been listed before me for the purposes of a further fitness enquiry, as required by s 29 of the Act. 8. The Crown submits that Mr Pesamino is fit to stand trial. Ms Walsh, who appears on behalf of Mr Pesamino, agrees with that submission and adopts the Crown's submissions. She did not wish to be further heard on the issue. 9. When the matter was last before me, there was no dispute between the parties that Mr Pesamino was unfit to stand trial but I was still required to conduct that inquiry and form my own view. On this occasion, there is no dispute between the parties as to his fitness but, again, I am still required to hold an inquiry and form my own view. 10. The procedure and principles to be applied remain the same as for the first fitness hearing. They are set out in my earlier judgment. 11. 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"). 12. Again, the background to the alleged offending and Mr Pesamino's own circumstances and the evidence that was before the Court in November 2019 is set out in my earlier judgment. I will not repeat it here although I have considered all of those matters in evidence for the purposes of this further fitness hearing. It is only necessary to set out the new evidence that has become available since my earlier decision and the reasons for my decision.