Preston v R [2023] NSWDC 362

District Court New South Wales

Medium Neutral Citation: Preston v R [2023] NSWDC 362 Hearing dates: 29 August 2023 Date of orders: 08 September 2023 Decision date: 08 September 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) The appeal against conviction is allowed. (2) I set aside the conviction and the penalty imposed by the Magistrate. (3) I find that the appellant has a mental health impairment. (4) Based on the facts and the evidence it would be more appropriate to deal with the appellant in accordance with the provisions of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act than otherwise in accordance with law. (5) I dismiss the Court Attendance Notice and discharge the appellant into the care of Dr Anthony Nicholas, psychologist, for a period of 12 months from 8 September 2023, concluding on 7 September 2024 on condition that he continues to participate in treatment with Dr Nicholas at such times as may be arranged between them. (6) Should the appellant fail to comply with the conditions of this order he may be called to appear before the Court following notification by Dr Nicholas to the Court or Community Corrections of non-compliance and the charge may be dealt with as if the appellant had not been discharged. Catchwords: CRIME — Appeals — Appeal against conviction Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Cases Cited: AG v Director of Public Prosecutions [2015] NSWCA 218 Charara v R [2006] NSWCCA 244 Confos v Director of Public Prosecutions [2004] NSWSC 1159 Costa v Public Trustee of NSW [2008] NSWCA 233 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93 Fox v Percy (2003) 214 CLR 118 Gianoutsas v Glykis [2006] NSWCCA 137 House v The King (1936) 55 CLR 499 Lumney v Director of Public Prosecutions [2021] NSWCA 186 McNab v Director of Public Prosecutions [2021] NSWCA 298 Category: Principal judgment Parties: Maurice Preston (Appellant) Rex (Respondent) Representation: Counsel: R Steward (Appellant)