Haydon John Newman v Regina

Crimes Act 1900; s428F(5); s556A Crimes (Sentencing Procedure) Act 1999; s10 LEGISLATION CITED: Criminal Appeal Act 1912; s5F Criminal Appeal Rules; r5B; r28 Mental Health (Criminal Procedure) Act 1990; s4; s5; s6; s7; s8; s9; s10; s11; s11A; s12; s14; s18; s19; s21A ;s22 ;s23

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 CASES CITED: 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

PARTIES: Haydon John Newman (Appellant) Regina (Respondent)

COUNSEL: M J Ierace SC; T Evers (Appellant) D Woodburne (Respondent)

SOLICITORS: P McGhee, Intellectual Disability Rights Sesrvice (Appellant) S Kavanagh, Director of PUblic Prosecutions (Respondent)

• 1 - IN THE COURT OF CRIMINAL APPEAL 2006/2282

SPIGELMAN CJ BELL J PRICE J

Wednesday 18 April 2007 Haydon John NEWMAN v REGINA Judgment 1 SPIGELMAN CJ: The Applicant was charged with three counts of assault said to have been committed on 22 June 2004 at Asquith Boys' High School and one count of malicious wounding said to have been committed on 23 June 2004 at the same place. 2 He was in custody between the time of his arrest on 23 June 2004 and 11 November 2005. 3 A substantive issue concerning the Applicant's mental health arose. The basic chronology is as follows: · On 2 December 2004 a direction by the Attorney General was given for a fitness hearing, pursuant to the Mental Health (Criminal Procedure) Act 1990 ("the Act"). · On 7 February 2005 the Applicant was found by a jury to be unfit to be tried pursuant to s14 of the Act. · On 18 April 2005 the Mental Health Review Tribunal found that on the balance of probabilities, he would not become fit to be tried within a period of 12 months. · On 1 August 2005 a special hearing under the Act was due to be held but the date was vacated. · On 12 October 2005, by reason of defects in the above procedure, the Solicitor General directed that a fresh fitness hearing be held. · On 18 November 2005 the Applicant was released on bail. · On 14 July 2006 an election under s11A of the Act was filed so that the question of unfitness was to be determined by a judge alone. · On 17 July 2006 the matter came before Nicholson DCJ. · Counsel for the Applicant made an application under s10(4) of the Act seeking an order that the charges be dismissed and that the Applicant be released. · On 18 July 2006 Nicholson DCJ dismissed the s10(4) application. · On 4 October 2006 Nicholson DCJ issued a certificate under s5F(3)(b) of the Criminal Appeal Act 1912 with respect to his Honour's judgment, certifying that the judgment was a proper one for determination by the Court of Criminal Appeal. 4 The certificate identified the following grounds:

"1 The learned trial judge erred in his interpretation of the operation of s10(4) of the Mental Health (Criminal Procedure) Act 1990.

2 The learned trial judge erred in his exercise of the discretions contained within s10(4) of the Mental Health (Criminal Procedure) Act 1990.

3 The learned trial judge erred in failing to dismiss the Appellant pursuant to s10(4) of the Mental Health (Criminal Procedure) Act 1990."

The Background Facts 5 The relevant events upon which the charges were based were set out by his Honour as follows: "[14] The Crown case is that at 2 o'clock on 22 June, which was a Tuesday, the applicant attended the administration offices at Asquith Boys High School. On entering that office he approached the cash register section where Joan Wilson was sitting at a front desk. Another lady, Rhonda Christie, was also inside the office. The office is partitioned from the general public by a large double sliding glass window. One of these was open at the time. [15] The applicant ignored inquiries from Ms Wilson as to why he was in the office or what he wanted. Using his body weight and both open palms he struck the closed portion of the sliding window. That caused the window to shatter towards Wilson and Christie. He continued to smash both sides of the window until the frame was completely empty of glass. [16] The Crown case continues that whilst in the process of smashing the window the applicant took a shard of broken glass, aimed at Miss Wilson, and threw it. She ducked behind her desk to avoid being stuck. Miss Christie also took cover behind the same desk in fear of her safety. [17] The applicant, whilst throwing and smashing the glass, was yelling 'I want the fucking principal. Where's the fucking principal. I want Mr Bonnor.' Mr Bonnor had been principal, but was no longer principal, at Asquith Boys High School. He had taken, as it turns out, a more senior role in the Department. The current school principal, a Mr David Short, hearing from his own office, the applicant yelling and smashing glass came into the general office. He was immediately approached by the applicant who grabbed him on both shoulders and began to push the principal backwards into his office. All the time he was yelling 'Who are you? I want Mr Bonnor.' The applicant began to kick Short on both legs. The principal was unable to free himself but two members of staff came to his assistance and restrained the applicant until Police arrived. [18] The applicant was bleeding from injuries he had received to his hands and forehead as a result of smashing the glass. He was handcuffed and conveyed to Hornsby Hospital where he was scheduled under the Mental Health Act. He was in fact assessed by the mental health team at the hospital and admitted to the Lindsay Madew Psychiatric Unit under a s22 Mental Health Act Order. Later that day he absconded from the psychiatric unit. [19] The following morning at about 11.40 he was back at the administration office at Asquith Boys' High School. The applicant was holding a piece of terracotta piping in both hands above his head. He was approached by the deputy principal, a Mr Collins, who had recognised him from the previous day. Collins said to him 'You, stop there.' The applicant continued to walk towards Collins who attempted to restrain the applicant. The applicant then took a piece of terracotta piping and struck Collins to the rear of his head causing a laceration that bled profusely. This is the wound that the Crown rely upon. [20] During the struggle the applicant dropped one of the pieces of terracotta piping on the stairs then picked up Collins and carried him to the administrative office area; for what purpose is unclear on these set of facts. Collins also sustained a graze to his forehead. Other members of staff came to Collins' rescue and restrained the applicant until Police arrived."

Jurisdiction 6 In written submissions Ms D Woodburne, who appeared for the Crown, identified two jurisdictional issues with respect to the application under s5F of the Criminal Appeal Act 1912. The first matter raised was that the Notice was not filed within the time specified by r5B of the Criminal Appeal Rules and that no notice of application for extension of time accompanied the Notice of Appeal pursuant to r28 of the Criminal Appeal Rules. 7 The Crown did not oppose an extension of time. Mr M Ierace SC, who appeared for the Applicant, made such an application orally. In the circumstances the extension would be granted, subject to the other jurisdictional matter raised by Ms Woodburne. 8 Section 5F(3)(b) permits the Applicant, where a judge has provided a certificate, to appeal without leave "against an interlocutory judgment or order given or made in the proceedings". 9 The Crown raised the question whether the dismissal by Nicholson DCJ of the application under s10(4) of the Act was "an interlocutory judgment or order given or made in proceedings" within the meaning of s5F(3) of the Criminal Appeal Act 1912. The Crown submitted that the issue is whether or not the application under s10(4) may be said to constitute a judgment, in that it determines an identifiable part of the proceedings (see R v Steffan (1993) 30 NSWLR 633), and could be said to be interlocutory, in the sense that it does not finally dispose of the rights of the parties (R v Pavia (1993) 67 A Crim R 364). 10 Mr Ierace SC submitted that the decision of Nicholson DCJ had the requisite character of finality. Section 10(4) required his Honour to determine the issue before a fitness inquiry was conducted. The Court could not, therefore, revisit the issue. The Applicant would have no further opportunity of availing himself of s10(4). He submitted the decision was interlocutory.

The Statutory Scheme 11 At the time of the application under s10(4), s10 provided: "10(1) If, in respect of an offence: (a) the Attorney General determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted, or (b) the question of a person's unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence, the Court must (except as provided by this section), as soon as practicable after the Attorney General's determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence. (2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith. (3) Before conducting an inquiry, the Court may do any one or more of the following: (a) adjourn the proceedings, (b) grant the accused person bail in accordance with the Bail Act 1978, (c) remand the accused person in custody for a period not exceeding 28 days, (d) request the accused person to undergo a psychiatric examination or other examination, (e) request that a psychiatric report or other report relating to the accused person be obtained, (f) discharge any jury constituted for the purpose of those proceedings, (g) make any other order that the Court considers appropriate. (4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released." 12 Section 11 of the Act provided that the determination of a person's unfitness for trial was to be made by a jury. However, the judge was empowered to determine the issue alone in the circumstances set out in s11A. The Act has subsequently been amended in this respect to establish a regime where fitness to be tried is to be determined by a judge alone in all circumstances. 13 In order to understand one of the authorities to be considered below, it is relevant to set out part of s11 and s11A as previously in force: "11(1) The question of a person's unfitness to be tried for an offence is to be determined by a jury constituted for that purpose, except as provided by section 11A. … 11A(1) The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone if the person so elects in accordance with this section and the Judge is satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor. … " 14 The immediate context of s10 was Pt 2 of the Act. At all times ss4-9 and 12 provided: "4 This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and criminal proceedings in the District Court. 5 The question of a person's unfitness to be tried for an offence may be raised by any party to the proceedings in respect of the offence or by the Court. 6 The question of a person's unfitness to be tried for an offence is to be determined on the balance of probabilities. 7(1) The question of a person's unfitness to be tried for an offence is, so far as practicable, to be raised before the person is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence. (2) Nothing in this section prevents the question of a person's unfitness to be tried for an offence from being raised on more than one occasion in respect of the same proceedings. 8(1) If the question of a person's unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney General must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. (2) The Attorney General may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted. 9 If the question of a person's unfitness to be tried for an offence is raised after the person is arraigned on a charge in respect of the offence, the Court must hear any submissions relating to the conducting of an inquiry in the absence of any jury which has been constituted for the purposes of the proceedings relating to the offence. … 12(1) At an inquiry, the accused person is, unless the Court otherwise allows, to be represented by counsel or a solicitor. (2) An inquiry is not to be conducted in an adversary manner. (3) The onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. (4) At the commencement of an inquiry the Court is to explain to the jury the reason for the inquiry, the findings which may be made on the inquiry and the consequences, both at law and otherwise, of those findings." 15 The Act makes provision for the alternative circumstances in which a person is found fit or found unfit to be tried. Where found fit, s13 provides that proceedings will occur "in accordance with the appropriate criminal procedures". 16 Where a person is found unfit, the person must be referred to the Mental Health Review Tribunal pursuant to s14. Where the Tribunal finds that the person would not be fit within 12 months, provision is made for a special hearing under the Act at the direction of the Attorney General. 17 At the time of the application in the present case, the relevant provisions with respect to a special hearing were: "19(1) If the Attorney General directs that a special hearing be conducted in respect of an offence with which a person is charged, the appropriate Court must, as soon as practicable after the Attorney General so directs, conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. (2) The question whether a person has committed an offence charged or any other offence available as an alternative to an offence charged is, except as provided by section 21A, to be determined at a special hearing by a jury constituted for that purpose. (3) The Jury Act 1977 applies to and in respect of the constitution of a jury and a jury constituted as referred to in subsection (2) in the same way as it applies to and in respect of the constitution of a jury and a jury for the trial of any criminal proceedings. (4) A member of a jury otherwise constituted for the purpose of any proceedings relating to the same accused person and the same offence is disqualified from being a member of a jury constituted as referred to in this section. 18 Section 21 made provision for a special hearing by judge alone. The Act further provided: "22(1) The verdicts available to the jury or the Court at a special hearing include the following: (a) not guilty of the offence charged, (b) not guilty on the ground of mental illness, (c) that on the limited evidence available, the accused person committed the offence charged, (d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged. (2) A verdict in accordance with subsection (1)(b) is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness under section 38. (3) A verdict in accordance with subsection (1)(c) or (d): (a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates, and (b) subject to section 28, constitutes a bar to further prosecution in respect of the same circumstances, and (c) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and (d) is to be taken to be a conviction for the purpose of enabling a victim of the offence in respect of which the verdict is given to make a claim for compensation. 23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term , in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence. (2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings. (3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings. (4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence). (5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court, after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time." 19 There is further detailed provision, which it is unnecessary to set out.

The s5F Issue 20 In my opinion, this Court has jurisdiction. 21 The decision by Nicholson DCJ to refuse the application for a determination not to conduct the inquiry and dismiss the charge was a discrete process ancillary to the principal proceedings. It was a decision on an "identifiable" and "separate" part of the proceedings. (See R v Steffan (1993) 30 NSWLR 633 at 636A.) It was clearly interlocutory in that it did not finally dispose of the rights of the parties. (Licul v Corney (1976) 180 CLR 213 at 225.) 22 In R v Mifsud (NSWCCA Unreported 8 November 1995), Gleeson CJ, with whom Levine and Dowd JJ agreed, determined that the decision of a judge, pursuant to s11A of the Act, that there had not been an effective election for a trial by judge alone and that, therefore, the fitness hearing had to proceed before a jury, was an interlocutory judgment within s5F. The present case is not, in my opinion, distinguishable.

Reasons of Nicholson DCJ 23 With respect to the issue of law which has been argued before this Court his Honour said, after summarising relevant facts: "[45] In my view these offences would call for punishment in the event that the applicant was found guilty of them, or in the event that the applicant was found, on the limited evidence, to have committed the offences. … [49] Again the interpretation of the section presents a problem. In the course of argument I expressed the view that upon a finding of guilt, or that on limited evidence the offence had been committed, the court would take into account any time served when turning to the question of sentence. It could do that for example by backdating a sentence, or by coming to a view that no further punishment was required. [50] It seems to me there is a difference between the proposition 'it is inappropriate to inflict any punishment' and 'it is inappropriate to inflict any further punishment'. In this case there is a real likelihood open, on the evidence, of time served and rehabilitation progress thus far made, and assessing, as best one can, the objective criminality of the facts as contained in the summary of facts from which I have read that no further punishment would be imposed. Nonetheless there may be a conviction or a limited finding that the offence was committed. [51] Those findings, while adverse, may not qualify as 'punishment' as meant in s10(4). But the potential for adverse findings in respect of the four charges on the indictment, would yield the inescapable conclusion that it would not be inappropriate for the judge to inflict punishment in the light of those findings standing alone. It is only when one adds to those findings the subjective history of time served and rehabilitation that one comes to a view that no 'further' punishment is required. [52] A finding is still open, even though I have expressed a view that in the light of the offender's current rehabilitation status, there is a real likelihood I would inflict no further punishment - that is a finding that it is inescapable that it would not be inappropriate for the Court to inflict punishment even in the light of my findings." 24 His Honour concluded his judgment with the following: [58] In all the circumstances, I find that it would not be inappropriate for a judge to inflict punishment in the light of these findings. The application is refused." 25 As I understand his Honour's reasoning, he did apply a test of "inappropriate to inflict any punishment", not a test of "inappropriate to inflict further punishment". This appears from his conclusion at [58], in view of his reasoning at [45] and [52].

The Appellant's Submissions 26 Nicholson DCJ was influenced in his analysis by the judgment of Meagher JA in Director of Public Prosecutions v Mills [2000] NSWCA 236, where his Honour identified what appeared to him to be a number of difficulties with the interpretation of s10(4). These difficulties were also emphasised in the Appellant's submissions in this Court. 27 The Appellant contends that Nicholson DCJ failed to have regard to the aim and purpose of the legislative scheme and erred in his interpretation of the phrase "inappropriate to inflict any punishment". In particular, the Appellant contended that his Honour erred in approaching the task as if he was a sentencing judge. 28 The Appellant submitted that the purpose of the Act was to provide appropriate procedures for persons with a mental illness and/or mental condition, which respond to the capacity of such person to stand trial and give instructions with due consideration to their disability. It was submitted that the Act makes provision for what was described as "specific and more flexible procedures for the disposal of offences alleged to have been committed by a person who has cognitive or mental disability". 29 The Appellant submitted that s10(4) conferred a very broad discretion, which gave the Court considerable flexibility to examine the totality of factors relevant to the person charged with the offence at the time the question of fitness was raised. For example, it was submitted that the Court should take into account the complexity and length of time involved in dealing with the Applicant if proceedings were to continue in accordance with the Act by way of a fitness hearing. 30 In the context of the facts of the present case, the Appellant submitted that the breadth of the discretion under s10(4) was such that it was permissible to take into account the fact that the Appellant had been remanded in custody for some 17 months. Accordingly, his Honour erred in approaching his task as if it were akin to a sentencing exercise in which the period of prior incarceration could be taken into account, most relevantly, by backdating any sentence. For that reason, the Appellant submitted, his Honour erred in the interpretation of the words "inappropriate to inflict any punishment" when he concluded that the offences did warrant some punishment, even if he may not have imposed any "further punishment". 31 The Appellant also submitted, on the above analysis, that the statutory scheme would be defeated if the issue of 'inappropriateness' focused on the guilt of the accused and the seriousness of the offences. It was submitted, to adopt the language of the written submissions, that this approach would be based "on disposition based on guilt rather than disability" and this was an error. 32 There was also a challenge to the exercise by his Honour of the discretion said to be found in s10(4). The Appellant submitted that his Honour's reference to the judgment of the Court of Appeal in Director of Public Prosecutions v El Mawas [2006] NSWCA 154, was in error because of the distinction between s32, under consideration in that case, and s10(4) in this case. However, his Honour clearly expressed, at [57], his understanding of the difference between the two sections. There is no basis for any interference with his Honour's exercise of discretion in this respect. 33 It was also submitted that his Honour's exercise of discretion miscarried because his Honour failed to give adequate weight to what was described as the "diversionary/disability purposes of the Act" and gave too much weight to the seriousness of the offence and the likely finding of guilt based on the objective facts. In particular it was submitted that he gave insufficient weight to matters such as the Appellant's intellectual disability, his epilepsy and other subjective matters.

Interpreting s10(4) 34 The Appellant's submission about the scope and purpose of the legislative scheme should be rejected. The purpose of the Act is not, in my opinion, to provide "specific and flexible procedures for the disposal of offences committed by persons who have a cognitive or mental disability". The Appellant's reference to the "diversionary/disability" purposes of the legislative scheme is also, in my opinion, incorrect. Similarly, it is not correct to infer that a focus "on disability" as distinct from a "focus on guilt" is required. I am unable to detect any such purposes in the legislative scheme. Finally, the Appellant's contention that the discretion is "broad" is likely to lead to error. The section confers a judicial discretion for specific purposes. 35 The relevant part of the Act is concerned to establish a regime for the determination of criminal guilt or innocence in circumstances where normal criminal procedures could not apply by reason of the mental condition of an accused at the time of trial. It is incorrect to describe the procedures as "diversionary" or as "flexible". They are alternative procedures designed to ensure that justice is done having in mind the possibility of a person's unfitness to be tried. Justice must, however, be done not only to the accused but to the victim, bearing in mind the public interest in resolving allegations of criminal conduct. 36 Section 10(4) is expressly directed to the appropriateness of the infliction of punishment. A judgment that punishment would be "inappropriate" leads to the result that the inquiry called for would not occur and the charge will be dismissed. Significant weight is to be attached to this consequence. A person charged with crime will never be tried. 37 The use of the word "punishment" indicates, in my opinion, that what the Parliament had in mind was an end result in which the person accused was in fact convicted, either expressly or by special hearing, of the relevant offence. This section is not, in my opinion, concerned with the possibility of a finding of not guilty, whether simpliciter or on the grounds of mental illness at the time of the offence. Nevertheless, the result of the process is that the proceedings are dismissed without trial. 38 I do not share any of the difficulties of interpretation identified by Meagher JA in DPP v Mills supra at [3]-[8]. The two circumstances in which an issue of 'punishment' arises can only be either as a result of conviction after a normal trial, where the person has been found fit to plead, or as a result of a finding of guilty of the offence "on the limited evidence available", following a special hearing within the meaning of s22(1). The latter finding is identified in s22(3) as a "qualified finding of guilt". Upon such a finding the court can determine under s23 a "limiting term" of imprisonment or some other penalty or make any other order which the court could have made "on conviction … in a normal trial of criminal proceedings". 39 In my opinion, s10(4) has in mind both situations i.e. where a person is found fit to plead and is convicted and where the qualified finding of guilt is made after a special hearing. The principal purpose of the subsection is to avoid the unnecessary delays, costs and complications of the special procedure, which arises only in the case where an issue of unfitness to plead has arisen at or about the time of trial and which operates irrespective of whether or not any mental illness was pertinent at the time of the commission of the offence. 40 The principal purpose of the fitness hearing is to facilitate the administration of criminal justice. The administration of criminal justice would not be enhanced in any manner, whether from the point of view of an accused or from that of a victim or from the point of view of the public interest, if the considerable added expense and delay of a fitness hearing is to be undertaken in circumstances where the court would, in the event, not inflict any punishment. 41 The reference to "any punishment" in s10(4) would, in my opinion, extend to the recording of a conviction which, of itself, without any additional penalty, has effects such as consequential effects on prospects of employment, loss of licences or a range of statutory consequences and, possibly, public opprobrium. (On public opprobrium see Ryan v The Queen (2001) 206 CLR 267 esp at [52]-[54]; [123]; c/f [177].) On other adverse consequences of a conviction see R v Lancaster (1991) 58 A Crim R 290; Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303 at [114]; R v Rhodes (NSWCCA Unreported 20 November 1996).) In my opinion, the recording of a conviction is itself a "punishment" within s10(4) of the Act. In any event, it is well established that the orders of the court after a special hearing constitute punishment. (DPP v Mills supra at [38]-[39]; Smith v The Queen [2007] NSWCCA 39 at [61]-[63].) 42 The formulation in s10(4) is analogous to the long-standing formulation which permits a court to dismiss a charge without recording a conviction even where the charge is proved. This provision is now found in s10 of the Crimes (Sentencing Procedure) Act 1999. At the time that s10(4) of the Act was first enacted in 1983 as s428F(5) of the Crimes Act 1900, the relevant section was s556A of the Crimes Act. 43 Section 556A relevantly stated: "556A Where … the court thinks that the charge is proved, but is of the opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment … the court may, without proceeding to conviction, make an order … dismissing the charge." 44 The basic structure of s10(4) and s556A is the same. In each case, relevantly, the ultimate power of the court is to dismiss a charge that has been, or may be, proven. The respective tests are equivalent, although the word "inexpedient" is replaced by what may appear to be more apposite terminology in the context of mental disability, i.e. "inappropriate". The list of matters to which regard may be had overlaps considerably, although the list in s556A has been shortened and a general, but not unrestricted, provision relating to "any other matter" inserted. 45 Nevertheless, in my opinion, the general approach adopted to s556A, and now to s10 of the Crimes (Sentencing Procedure) Act, is the correct general approach to adopt for the purposes of s10(4) of the Act. The task is to be conducted in anticipation of a finding of guilt, by either of the two courses which can flow from a fitness hearing, i.e. a normal criminal trial or a special hearing. 46 Section 10(4) requires the court to approach an application on the assumption of a finding of guilt, including a finding of qualified guilt, and then to apply a similar range of considerations as now arise under s10 of the Crimes (Sentencing Procedure) Act 1999. It permits the court to dismiss a charge without proceeding to a fitness hearing, on the assumption that there would be a finding of guilt if the matter did proceed to either a trial or a special hearing. Where the court would not impose any punishment, including the element of punishment implicit in a conviction, then the proceedings should be dismissed in limine without the need for a fitness hearing.

Conclusion 47 In my opinion, reading the judgment of Nicholson DCJ as a whole, his Honour did approach the matter in the correct manner. He correctly placed himself in the position of a sentencing judge after a conviction, albeit hypothetically. He referred to the possibility that he would not inflict any additional punishment, over and above the period served in custody, but expressly stated that the offences would call for punishment if a finding of guilt were made. (See at [45], [52] and [58] set out at [21] above.) I can see no error that would justify the intervention of this Court. 48 In my opinion, leave to appeal out of time should be granted but the appeal should be dismissed. 49 BELL J: I agree with Spigelman CJ. 50 PRICE J: I agree with Spigelman CJ. **********

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