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[2025] NSWSC 1456
General information, not legal advice.
Supreme Court of NSW
2025-12-03
Fagan J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Wheeldon [2025] NSWSC 1456
Hearing dates: 1-3 December 2025
Date of orders: 3 December 2025
Decision date: 03 December 2025
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision: Verdict: Proven but not criminally responsible.
(1) Order pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that Robbie Wheeldon be detained at the Long Bay Hospital, Malabar, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
(2) Order pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that Robbie Wheeldon is referred to the Mental Health Review Tribunal.
(3) Direct the Registrar to notify the Minister for Health of these orders within 7 days.
(4) Direct the Registrar to notify the Mental Health Review Tribunal of the verdict and these orders and to provide to the Tribunal a copy of the Court’s reasons for judgment, the exhibits and the victim impact statements within 7 days.
(5) Direct the Registrar to notify Justice Health of the verdict and these orders and to provide to Justice Health a copy of the Court’s reasons for judgment, the exhibits and the victim impact statements within 7 days.
(6) The charge that on 10 August 2023 at Pilliga the accused did intimidate Danielle Newman with the intention of causing her to fear physical or mental harm is dismissed and the accused is discharged with respect to that matter unconditionally.
(7) The charge that on 10 August 2023 at Pilliga the accused did resist Stephen Cruikshank being a Senior Constable executing his duty is dismissed and the accused is discharged with respect to that matter unconditionally.
Catchwords: CRIMINAL LAW – murder – defence of mental illness – accused suffering from a schizophrenia spectrum illness – expert evidence unanimous that accused was suffering from a mental health impairment at the time of the acts – expert evidence unanimous that accused could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were wrong –verdict of not guilty by reason of mental illness
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic Violence) Act 2007 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Category: Principal judgment
Parties: Rex (Crown)
Robbie Wheeldon (Accused)
Representation: Counsel:
N Keay (Crown)
S Bouveng (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)
File Number(s): 2024/00313031
Publication restriction: No
On 27 May 2025 Robbie Wheeldon was committed from the Local Court at Narrabri to this Court on a charge that on 10 August 2023 at Pilliga he did murder Malcolm Wheeldon. Malcolm Wheeldon was the accused’s father. On 4 July 2025 the accused was arraigned before Hamill J and pleaded not guilty. With the consent of both the Crown and the accused, his Honour ordered pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW) that the accused be tried by judge alone.
The trial was listed before me on 1 December 2025 at Moree. The accused through his legal representatives indicated from the first mention of the charge in this Court that he did not deny having caused the death of the deceased but would contend that at the time he was relevantly affected by a mental health impairment within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (Mental Health Forensic Provisions Act) and that he was not criminally responsible for the homicide by the operation of s 28 of that Act. There has been no suggestion that the accused has been unfit to plead at any time since his committal.
4 Mental health impairment
(1) For the purposes of this Act, a person has a mental health impairment if—
(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and
(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
(2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons—
[…]
(c) a psychotic disorder
(3) A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
28 Defence of mental health impairment or cognitive impairment
(1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment […] that had the effect that the person—
(a) did not know the nature and quality of the act, or
(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
(2) The question of whether a defendant had a mental health impairment […] that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.
(3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment […] that had that effect.
(4) In this Part, act includes—
(a) an omission, and
(b) a series of acts or omissions.
This being a judge alone trial, the question of fact arising under s 28 is to be determined by me on the balance of probabilities. The accused’s reliance upon s 28 arises from reports of Dr Gerald Chew, psychiatrist, dated 4 June 2024, 28 April 2025 and 10 November 2025. The Crown arranged for the accused to be examined by Dr Kerri Eagle, psychiatrist, and obtained reports from her dated 10 January 2025, 9 May 2025 and 21 November 2025. The reports of Dr Eagle were tendered in the Crown case and she also gave oral evidence. Dr Chew’s reports were tendered in the case for the accused and Dr Chew gave oral evidence.
Section 29 of the Mental Health Forensic Provisions Act is as follows:
29 Explanation to jury
The judge must explain the following matters to the jury if the question of whether the defendant had a mental health impairment or a cognitive impairment, or both, as referred to in section 28(1) is raised—
(a) the findings which may be made on the trial,
(b) the legal and practical consequences of those findings,
(c) the composition of the Tribunal and its relevant functions with respect to forensic patients,
(d) without limiting paragraph (b), that a defendant who is found to have committed the act constituting the offence but not to be criminally responsible because of a mental health impairment or cognitive impairment, or both, may be ordered to be released by the Tribunal only if the Tribunal is satisfied, on the evidence available to it, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release,
(e) that the jury should not be influenced by the consequences of a special verdict of act proven but not criminally responsible in deciding a verdict.
The deceased was 59 years old when he was killed, at about 9:40 pm on Thursday, 10 August 2023 at his home at Pilliga. Pilliga is a small settlement of approximately 200 inhabitants located 90 km west of Narrabri. The deceased had lived there, mostly alone, for about 10 years.
About three weeks prior to 10 August 2023 the accused came to Pilliga to visit the deceased and to stay with him. The accused was accompanied by his partner, Ms Danielle Newman, and their five-month-old baby. The accused was born in July 1998 and was aged 25 years at this time.
Over the three weeks of their visit leading up to 10 August 2023 there were frequent very loud arguments between the accused and Ms Newman. Neighbours heard them screaming and shouting at each other on most days and during the nights, more or less constantly. The accused was using methylamphetamine heavily at this time, as he had done earlier in their relationship. Some of the arguments were about Ms Newman telling the accused to stop using illicit drugs.
Ms Newman gave the following account of events immediately preceding the killing of the deceased, which I accept. She said that the accused did not sleep during the two preceding nights and he did not sleep during the daytime either. He was not eating over that period. On Thursday, 10 August 2023 the accused told Ms Newman he was sleep deprived and had mental illnesses. Over the preceding two nights he was talking incessantly, to himself. His talking was likewise continuous during the Thursday. He refused Ms Newman’s plea that he should see a doctor.
During the evening Ms Newman was so concerned about the accused that she tried to leave the home with her baby, to get help. However, the accused blocked her from leaving. He alternated between aggression and affection towards Ms Newman. At one point he said he would kill her, then he said he was joking. At some time after about 9:15 pm Ms Newman took the baby into the bathroom and tried to lock herself in. She was in fear of the accused. He forced the bathroom door open and off its hinges. At that time the deceased was in the lounge room of the house. Ms Newman saw the accused push the deceased to the floor.
That was the last Ms Newman saw of physical conflict between the accused and his father. She left the house carrying the baby a few minutes before 9:30 pm. After unsuccessful attempts to get help at nearby residences, Ms Newman went to the home of Senior Constable Cruickshank, the police lock-up keeper at Pilliga. Mrs Cruickshank took Ms Newman and the baby in at about 9:30 pm and woke her husband, who was off duty.
Two minutes after Ms Newman left the house, the deceased was captured on his home CCTV system running down some steps into his yard, followed closely by the accused. The accused was barefoot throughout these events and bare chested, wearing only a pair of long track pants.
Mr Warwick Hall was the deceased’s next door neighbour. The two houses were approximately 20 m apart. The deceased’s house was surrounded by a large yard. Shortly after 9:30 pm Mr Hall heard a male person calling “Help, help me”, loudly in a high-pitched and desperate tone. Mr Hall stepped outside his house and when the cries for help were repeated he recognised the voice as that of the deceased. He looked across the fence and saw Malcolm Wheeldon on his knees in the yard, about 6 m away with the accused standing over him holding his hair with both hands and pulling him upright. Malcolm Wheeldon was shouting “Robbie, Robbie stop it”.
Mr Hall ran back into his own house to pull on some clothes. By the time he got around into the deceased’s yard to intervene in the conflict, the deceased was on his back. The accused was kneeling beside him with his hands around his father’s throat. Mr Hall put his arms around the accused from behind, under his arm pits, and pulled him off. Malcolm Wheeldon sat up a little off the ground but as soon as Mr Hall released his grip on the accused, he ran back to resume throttling his father. Malcolm Wheeldon said, “Stop it Robbie, you are killing me Robbie, I am bleeding out, stop it”. The accused forced his father back down onto the ground and gripped him around the throat. He leaned over the top of the deceased and pushed down with both hands at his neck.
Mr Hall pulled the accused off again but he had to use some force because of the accused’s grip on his father’s throat. Again, as soon as Mr Hall released the accused, he went back to throttling his father with both hands. The deceased did not speak again. As he was choking his father the accused said, “Did you rape me dad, when I was a boy did you rape me?”. Mr Hall pushed the accused off the deceased. The accused then paced and ran in circles around the yard. Mr Hall examined the deceased and found that his chest and back were bloodied. No pulse could be detected.
When Mr Hall went on to the deceased’s property to try to stop the accused attacking him, his partner made a triple-0 call to police at 9:39 pm. After the struggle ended, Mr Hall returned to his house. The accused followed him and for about 20 minutes he jogged backwards and forwards on Mr Hall’s land and between the two properties, in a hyperactive, agitated manner.
Senior Constable Cruickshank arrived at Mr Hall’s property shortly after 10:00 pm. He arrested the accused, who resisted. He had to be held face down on the ground with the assistance of Mr Hall, while handcuffs were put on. The accused was placed in the caged police vehicle that SC Cruickshank had driven to the scene. Throughout the process of restraining the accused, he was highly agitated and speaking a stream of disconnected words. Verbal communication with him was not possible. More police arrived from Narrabri at about 10:30 pm. The accused was transferred to one of their vehicles and was taken back to Narrabri police station.
Multiple stab wounds to the chest and neck in the setting of blunt force head trauma and neck compression.
[He] admitted to using alcohol and cannabis from the age of 18 and methamphetamine from the age of 21. He admitted that around the time of the [homicide] he was using around 7 grams of cannabis a day, 3.5 g of synthetic cannabis a day, a few points of ICE by way of smoking and Lorezepam up to 30 tablets every 3 days.
Lorezepam is an anxiolytic and sedative medication, in the class of benzodiazepines. Dr Chew was sceptical of an actual consumption of 30 tablets, which he explained would be fatal for most people. He said that the accused would likely have developed a tolerance for an excessively high dose of the medication and, despite its sedative properties, it would not have alleviated psychotic symptoms.
A blood sample was taken from the accused approximately 10 hours after he had killed his father. No amphetamines were detected and the Delta-9-THC level was at .006 mg/L, which, according to the opinion of one of the two toxicologists in the case, is approximately the baseline level for a regular user. The toxicologists are of the opinion that the accused would not have used methylamphetamine for at least 24 hours before the sample was taken; that is, at least 14 hours before the homicide. Having regard to the rapidity of onset of the intoxicating effects of the drug and the usual rate of its elimination from the bloodstream, the accused would not have been directly affected by methylamphetamine at the time of his attack on the deceased.
The toxicologists could not say whether the accused may have used cannabis shortly before the attack or whether he may have been affected by it at the time. However, the experts agree that witness descriptions of the accused’s behaviour and the CCTV and body worn video recordings of him on the evening of 10 August 2023 cannot be attributed to acute cannabis intoxication.
The accused’s long-term misuse of illicit drugs has given rise to an issue as to whether, at the time when he killed the deceased, he may have been impaired solely by the “temporary effect of ingesting a substance”, so that the Court could not find him to have had a mental health impairment: s 4(3) of the Mental Health Forensic Provisions Act.
In order to disentangle the effects of the accused’s long term illicit drug use from symptoms of an underlying psychotic mental health impairment, it is necessary to consider manifestations of the accused’s mental illness over a 10 year time frame, from his mid-teens.
The accused’s upbringing in early childhood was chaotic and traumatic. His mother has bipolar disorder and his father was schizophrenic. There were three children: the accused and his two sisters, one of them two years older and the other six years older. The family moved around the State a great deal and the children had no stability in home or in schooling. The parents smoked cannabis in the home and behaved sexually in the presence of the children. The deceased administered excessive physical discipline to all three children. The accused was physically abused by his father and, in a manner that is not clear on the evidence, he was also indecently assaulted by his father. The evidence does not disclose when or over what duration that occurred.
During a separation of the parents in 2002 the deceased commenced to molest the eldest child sexually. She was then 10 years old. The parents reunited shortly afterwards. The older daughter did not say anything of the deceased’s conduct until 2008, when she was 16 and had moved away from her parents’ home. When the mother was informed she immediately left the deceased, taking with her the accused and the younger daughter. Not long after that the accused and the middle child were removed by the authorities from the mother’s care and placed with their aunt at Forster. The accused was 10 years old at that time. His father was charged on 26 February 2009 with sexual offences against the eldest child and subsequently sentenced to a term of imprisonment, of which he served 4 years and nearly 6 months, from 26 February 2009 to 5 August 2013.
In 2012 the accused was 14 years old and was still in the care of his aunt and uncle at Forster. His mother was not permitted to have contact with him until he reached the age of 15. By 2012 the accused had been diagnosed with ADHD and conduct disorder. He was seeing a psychologist fortnightly. On 20 December 2012, at age 14 years and 5 months, the accused presented to Manning Base Hospital at Taree after becoming acutely distraught and harming himself in response to his foster mother having threatened a sanction for misbehaviour. The accused was at that time stressed about the impending release of his father from prison, expected to be in 2013.
Further admissions as a psychiatric patient followed during the period in which the accused continued to live with his foster parents, up to the age of 18. The records include the following:
July 2013 (aged 15): admission for two days to Manning Base Hospital. The accused had suicidal ideation, was stressed about his father’s release and the end of the prohibition on contact by his mother. He feared that he would be removed from the foster care arrangement. He was diagnosed with bipolar disorder and medicated.
January 2014 (aged 15½ years): admission for twelve days to Manning Base Hospital. The accused had been threatening self harm and was exhibiting “unusual hoarding behaviour”. He exhibited “marked anxiety and easy disassociation with initial insomnia and sleepwalking”. Olanzapine, an antipsychotic medication, was prescribed.
June 2014 (aged nearly 16 years): admission for eight days to Manning Base Hospital. The accused had been “making inappropriate sexual oriented remarks to staff at school” and talking to his foster mother about suicide. He was diagnosed with PTSD, depression, ADHD and bipolar disorder.
August 2014 (aged 16): admission for four days to Manning Base Hospital. The accused was suffering acute anxiety escalated by anticipation of the expiry of an Apprehended Violence Order against his father. The accused’s psychotropic medication was maintained, including Olanzapine.
2015 (aged 16 years and 10 months): admission for 21 days to John Hunter Adolescent Mental Health Unit, Newcastle. After recent phone contact with his father following the latter’s release from prison, the accused experienced stress “which led to depressive and suicidal ideation, sleepwalking carrying knives” and irrational behaviour. The accused reported “derogatorily male voices asking to kill himself”.
August 2020 (aged 22 years): admission for 11 days at the Mental Health Unit of the Mater Hospital, Newcastle. The accused was experiencing suicidal ideation and auditory hallucinations of a voice telling him that he was going to die. He had experienced paranoid persecutory thoughts over the preceding 24-48 hours, believing someone was going to kill him. He was highly agitated and erratic. He denied drug use but urine analysis was positive for methylamphetamine. The impression of medical staff was a major depressive disorder with mood congruent psychotic features. He was prescribed Olanzapine.
January 2022 (aged 23½ years): admission for 15 days to Tamworth Base Hospital. The accused was referred by a general practitioner after being brought in by his work supervisor in a catatonic state, barely speaking and with limited physical movements. He was unable to complete sentences and was experiencing “thought blocking”. When a history could be obtained from him he described feeling stressed by an Apprehended Violence Order for the protection of a female partner, with whom he had a child. He had not been sleeping or eating in the days prior to his admission. The accused was not eating or drinking during this admission and had to be transferred to a general hospital ward for intravenous fluids.
The accused’s sleeplessness and erratic behaviour over the days leading up to 10 August 2023 has been described earlier, by reference to the evidence of Ms Newman. CCTV footage from the deceased’s home, recorded between about 8:30 pm and 9:30 pm, shows the accused walking swiftly around the verandahs of the house, up and down the stairs leading to the yard and in and out of entry doors. His movements were rapid, disordered, agitated and apparently without purpose. Ms Newman can be seen in this footage carrying her baby, crying at times and being intermittently obstructed and/or confronted by the accused. There is no sound recording with the CCTV. At the end of the recorded sequence, at about 9:30 pm, the deceased is seen to run down the steps from a verandah to the yard, closely followed by the accused. Ms Newman had by that time walked towards the police residence, where she was admitted by Mrs Cruickshank.
Movements of the accused were next captured on Mr Hall’s CCTV from shortly after 9;40 pm. The accused can be seen after his attack on the deceased had ended. He ran in a circle within the deceased’s yard, then commenced trotting back-and-forth, at intervals, along Mr Hall’s driveway from the street entrance towards Mr Hall’s house. At one point in this sequence the accused leapt up to the top of the 2.1 m high fence between the two properties and dropped down into the deceased’s yard on the other side. He then jogged to street frontage of the property and came back onto Mr Hall’s property through his front gate and along the driveway. His movements were hyperactive and disorganised. There is no sound recording with the CCTV but Mr Hall gave evidence that during this activity, which continued for about 20 minutes, the deceased made no coherent utterances. From time to time he shouted the name of Mr Hall’s partner or the name of his dog. The accused repeatedly tried to push his way past Mr Hall, who was standing at his front door. For two minutes the accused disappeared from the view of the CCTV camera. At that time he ran to a lagoon at the end of the street and immersed himself, returning soaking wet. The accused’s resistance to being arrested when SC Cruickshank arrived has been described above.
By 12:15 am on 11 August 2023 the accused was in custody at Narrabri police station. Body worn video recordings of him in the dock show that by then he was speaking in full sentences, with pressure of speech. He was very difficult to interrupt and barely responsive to repeated directions from the custody manager. By about 1:30 am, four hours after the fatal attack on the deceased, the accused was lying down in the dock, less argumentative and falling asleep. He became wakeful again but then slept heavily for over an hour from 3:40 am.
Upon waking at 5:00 am the accused was calm enough for forensic procedures to be undertaken, including examination and photographing of his hands. That occurred between 5:45 am and 7:00 am. During the forensic examination of the accused he said the following to Detective Senior Constable Ridley:
… I accidentally literally took my father’s life because I pushed myself by not sleeping, I accidentally took my own father’s life because I let my own thought get the better of me because I had been --- Not the own thought, I just wasn’t even me. It was my sleep deprivation that just took over and when I realised that I was wrong and the [whole] time I was, I knew the whole time I was paranoid and I, no, no one, you know what I mean? All that shit like, I knew how it all really was the whole time but because of my sleep deprivation that has literally taken over me because I am not mentally sane unless I’m on the correct medication. So I demand a medical review before my court appearance. […] ‘Cause I didn’t mean to kill my father. I accidentally killed my father while in the process in the meantime of trying to be ---
Are you sure if you, if you’re allowed to, will you support me through the courts and, um --- through my medical --- and all that, through killing my father by accident --- That’s my charge. Manslaughter. Manslaughter. It wasn’t me. It was my mental health and sleep --- deprivation.
When the accused was spoken to in custody by Dr Chew on 22 August 2023, by AVL, he appeared vague and perplexed. He did not respond to questions from the doctor in a coherent way. He reiterated, over and over, the meaningless phrase “Repeat, repeat, repeat”. He said he had not taken antipsychotic medication for at least some months prior to the homicide. Since that night it appeared that he had only received the single 10 mg dose at Narrabri Hospital on 11 August.
From late August 2023, on remand, the accused was compliant with prescribed medication which included Olanzapine at a high dose of 20 mg nightly and 5 mg each morning. A forensic registrar observed signs of psychosis during those months, including mumbling to himself, inappropriate responses to questions, rambling thoughts and poor eye contact. He was responding to unseen stimuli and experiencing auditory hallucinations. The accused at that time openly admitted to having killed his father. He expressed suicidal ideas.
By mid November 2023 a provisional diagnosis of schizophrenia was made. The accused’s symptoms then appeared to be managed by medications and the auditory hallucinations subsided. They resumed from April 2024, apparently intermittently. It appears that his psychosis has not subsequently progressed to an acute state in custody. Dr Chew found the accused markedly more coherent when he interviewed him a second time, in person, on 23 February 2024. By that stage he had been medicated with Olanzapine for six months.
Most recently, according to a comprehensive Justice Health report by Dr Alexander Leroux dated 1 October 2025, the accused has complained of not sleeping well, hearing the voice of his father and also a female voice, having nightmares concerning his father and child sexual abuse and having racing thoughts. Dr Leroux has observed that the accused is distractible, hyperactive, talkative and reactive, without thought disorder but with some ideas of reference. He concluded that the accused’s psychotic disorder could be more optimally controlled and he increased the dosage of Olanzapine to 30 mg daily, all to be administered at night. Drs Eagle and Chew observed that this is an extremely high dose, consistent with the treating doctor’s assessment of psychotic illness requiring assertive treatment.
The above summary of the course of the accused’s diagnosis, treatment and management in custody is very much abbreviated. Again, a full, chronological narrative of the Justice Health records has been provided in Dr Eagle’s report of 10 January 2025.
In phone calls from the Metropolitan Reception and Remand Centre at Silverwater on 20 and 23 February 2024, the accused spoke openly to his aunt and uncle of having stabbed and strangled the deceased. He said that on the night in question his father said to him, with reference to Ms Newman, “Oh, when you going to let the old man have a ride of your woman? When’s, when, when you going to let daddy have a ride?” The accused told his aunt and uncle that he responded by telling his father to “shut up” and that Ms Newman walked to the bathroom and locked herself in because she was shocked. He said that she appeared to be talking to herself in the bathroom and sounded distressed. The accused said that he pulled the door open and Ms Newman ran outside with the baby. He said his father locked him out of the house briefly but that he got back inside and was confronted by his father with a knife saying “Where’s Danielle? I want to rape her”. According to his account the accused got the knife off his father, followed him when he ran outside and killed him.
The accused gave a broadly similar account to Dr Chew on 23 February 2024. Ms Newman’s description of the events, as summarised earlier in these reasons, is entirely different. She makes no mention of any such provocative suggestion by the deceased. I accept Dr Chew’s opinion that the accused’s belief about his father making a lewd suggestion that he would have sexual intercourse with Ms Newman was a persecutory delusion.
Dr Chew has diagnosed the accused as most likely suffering from schizophrenia, which is a psychotic disorder and therefore falls within the recognised causes of mental health impairment as provided for in s 4(2)(c) of the Mental Health Forensic Provisions Act. In Dr Chew’s opinion the accused was, at the time of the homicide, suffering from active psychosis as a symptom of his schizophrenia, exacerbated by his use of substances over time. Dr Chew considers that the accused’s psychotic episode on the night of 10 August 2023 caused a disturbance of thought that was significant for clinical diagnostic purposes and that impaired his judgment and behaviour at the time.
Dr Chew does not consider that the accused’s impairment was caused solely by the temporary effects of having ingested a substance. That conclusion is strongly supported by the toxicological evidence, which places the accused’s last usage of methylamphetamine at least 14 hours before his attack on the deceased, so that any intoxicating effect would have well preceded the homicide. The doctor says that the toxicology reports make it “clear he wasn't acutely intoxicated and affected in that way”. I accept Dr Chew’s opinions in that respect. They support a finding on the balance of probabilities that the accused had a mental impairment within the meaning of s 4 of the Act at the time when he killed his father.
Although Dr Chew considers that the accused is likely to have known the nature and quality of his acts of stabbing and strangling the deceased, it is his opinion that the accused did not know that what he was doing was wrong. Attending to the terms of s 28(1)(b) of the Act, Dr Chew’s assessment is that the accused would not have been able to “reason with a moderate degree of sense and composure about whether [his acts], as perceived by reasonable people, [were] wrong”. Dr Chew concludes that, by reason of his psychotic and delusional state, the accused’s disorder of mind led him to believe that he was acting in justifiable defence of Ms Newman against a threatened sexual assault. Even without that specific delusion, Dr Chew considers that, by reason of the level of the accused’s mental disorganisation and psychosis at the time, he would not have been able to reason about the wrongfulness of his acts, in the statutory sense. Dr Chew’s assessments are sufficient to establish the mental health impairment defence as provided for in s 28. As explained below, that conclusion is supported by the expert evidence of Dr Eagle.
Dr Chew gave what I accept as a likely explanation of why the accused’s schizophrenia was not diagnosed unequivocally at an earlier time, despite his numerous and relatively frequent admissions to mental health hospitals over the preceding 10 years. As the doctor points out, on each of those admissions the accused presented with acute symptoms in the context of some precipitating event, against a background of severely dysfunctional early family life and traumatic experiences of childhood physical and sexual abuse. Dr Chew explained that psychoses can occur in severe trauma based disorders. He identifies a significant possibility, if not probability, that the accused was schizophrenic throughout his mid-teens and into adulthood and that his underlying schizophrenia was not identified because of the attribution of psychotic and other symptoms to more tangible potentially causative experiences.
There is an ample medical record of the accused displaying severe symptoms of depression, anxiety and emotional dysregulation as a result of his childhood trauma. Dr Chew said that sometimes the presence of schizophrenia is not obvious at early presentations because of the extent of the patient’s behavioural disturbance and trauma-related symptoms that have led to attendance at a mental health unit. Psychotic symptoms may initially appear to be only a minor part of early presentations. The diagnosis of schizophrenia may become clearer over a longer timeframe, as Dr Chew considers has occurred in this case.
In Dr Chew’s opinion, a differential diagnosis of schizoaffective disorder is also plausible. He explained schizoaffective disorder as follows:
[With] schizophrenia, mood component is not as prominent. With schizoaffective disorder, there is often the mood component, be it either an elevated, expansive mood or a depressed mood, but when the mood component goes away, the psychosis often remains so that's the essential diagnosis of schizoaffective disorder.
[In schizophrenia] the fluctuations in mood may not reach the threshold of criteria for the diagnosis of, for example, a major depressive disorder or bipolar disorder. Whereas in a schizoaffective disorder you really need to meet the criteria for both conditions […]. You need to meet the criteria for - essentially for schizophrenia and for a bipolar disorder or a major depressive disorder concurrently.
Dr Chew considered the progression of the accused’s behaviour on the night of 10 August 2023 and into the next morning, as summarised to him from the CCTV and body worn video footage. The accused’s seemingly manic hyperactivity recorded between 8:30 pm and 10:30 pm subsided over night to the point where he became sleepy and dozed off. His incoherent one word utterances at around 10:00 pm became full sentences, albeit expressing disconnected thoughts, by the time he was at the Narrabri police station shortly after midnight. By 7:00 am on the morning of 11 August he was expressing a degree of reason about his criminal responsibility, his mental illness and his need for medication.
Dr Chew explained that this course of his presentation was consistent with schizophrenic psychosis, particularly in a person such as the accused who has a long history of dysregulated emotions and significant swings of mood, as noted in his medical records. In Dr Chew’s opinion the disturbance of the accused’s mind would have been greater and the outward demonstration of his psychosis would have been more pronounced when he was emotionally heightened, as was evidently the case at the time of the homicide. Dr Chew regards it as typical that the intensity of psychotic behaviour would diminish quite rapidly with lowering of the accused’s emotional state and with him being in the police station, a “lower stimulus environment than he had been in previously” when he was in conflict with Ms Newman and his father. The accused’s brief period of sleep in the dock, after about 72 hours of being continuously awake and agitated, would also “have improved his mental state somewhat”.
More generally, Dr Chew said this:
[It's] very common for there to be fluctuations in a presentation, even over the course of hours.
In her first report, dated 10 January 2025, Dr Eagle accepted that the accused has a psychotic disorder but, without the benefit of a longitudinal assessment in a secure hospital setting, she was unable at that time to determine whether it is substance induced or schizophrenic. Dr Eagle also diagnosed PTSD, ADHD and borderline and antisocial personality disorders. She said that the mental disorders she identified would result in symptoms that cause “a temporary and enduring disturbance of the accused’s thoughts and mood, and impair his emotional well-being, judgement and behaviour”.
At the time of her first report Dr Eagle thought that on the night of the homicide the accused appeared intoxicated, based upon review of the CCTV and body worn video footage. She found it “difficult to clearly separate Mr Wheeldon’s symptoms of intoxication from the impact of his underlying mental health conditions”. Dr Eagle expressed a somewhat tentative conclusion with respect to whether the accused had a “mental health impairment” within the meaning of the Act, as follows:
[It] is likely that substance intoxication would have significantly exacerbated symptoms of underlying mental health conditions such as PTSD, ADHD and possible psychotic phenomena. On that basis the mental health conditions would arguably satisfy the definition of a mental health impairment for the purposes of the Act.
[147] Mr Wheeldon appeared capable of being aware of the physical nature and quality of his actions at the time of the [homicide]. He appeared aware he had killed his father and his actions have been purposeful rather than automatic or involuntary.
[153] […] On the basis of the information available, Mr Wheeldon was probably not capable of reasoning with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong due to a combination of his mental health impairments and substance intoxication.
16.2.3 The toxicology report does clarify that the effects of intoxication were likely limited to those of cannabis and although cannabis intoxication can exacerbate psychotic symptoms and behavioural disturbance, it is less likely to explain Mr Wheeldon’s disordered behaviour on the day of the [homicide]. I agree with Dr Chew that this would suggest intoxication had less relevance to Mr Wheeldon’s mental state at the time.
16.2.4 I am now of the view, having regard to the additional information, that although Mr Wheeldon’s trauma related symptoms likely had a significant impact on his presentation, his presentation and behaviour would suggest he was experiencing a psychotic episode at the time of the offending, whether substance induced or as part of a chronic psychotic illness. Psychosis can cause agitation, mood disturbance, thought disorder, and disorganisation of behaviour, in addition to hallucinations and delusions. Mr Wheeldon’s overall disorganised and agitated behaviour is most likely explained by a combination of trauma related symptoms and psychosis (in the absence of acute intoxication effects).
[A] very detailed assessment was done and it clearly demonstrated similar symptoms of psychosis that had [been] elicited by Dr Chew and myself during our reviews, and of a much more clear cut impression with the benefit of say a longitudinal perspective of his clinical presentation that this was a psychotic illness.
[13] I am of the view that Mr Wheeldon has a psychotic illness, which having regard to all the toxicology evidence, is most likely a schizophrenia spectrum illness. His presentation around the time of the alleged offending, based on the available information, was consistent with a psychotic episode, characterised by disorganisation of thought form, auditory hallucinations, referential ideas and possible persecutory ideas or delusion involving his father (for instance, intending to harm his partner). […]
most consistent with an episode of psychosis combined with other symptoms including pervasive psychological vulnerabilities such as emotional dysregulation, preoccupation with previous traumatic memories and attentional deficits, but all of which were due to a mental health impairment within the meaning of the [Act]. As indicated in my report dated 9 May 2025, his mental health impairment was not solely attributable to the temporary effect of ingesting a substance, or a substance use disorder.
It's actually not unusual, your Honour, for that to occur. I mean I think people with other mental health impairments are at a higher risk of developing a psychotic illness like schizophrenia. So it's not unusual for people with schizophrenia to have been diagnosed with various other mental health conditions before the onset of say schizophrenia is identified and recognised by teams. And he quite genuinely probably does have PTSD and ADHD, and that's not necessarily explained by the schizophrenia; it's just an in addition to.
But the effect that [a psychotic episode] impacts on the person's behaviour and their emotional state will certainly fluctuate, even thought the delusion might stay there the whole time by way of example. But there is a complexity in Mr Wheeldon's case, which isn't necessarily unusual, and that is he had very severe emotional dysregulation problems.
So he had - like in addition to say a psychotic illness, from a history of trauma early in childhood most likely, but he clearly demonstrated problems regulating his emotions. Which means that, you know, he had problems with anger, problems with very intense emotional responses to say probably mild - you know, antagonism. And we know that emotional states affect psychotic symptoms. So if he's in a heightened emotional state, he's going to have much more intense psychotic symptoms and that's going to also affect his ability to reason and his level of disorganisation.
And so one way you might be able to formulate that pattern that you're describing is, when he's feeling angry or in a heightened emotional state, he's much more disorganised and dysregulated, and probably experiencing more intense, for instance, perceptual disturbances such as auditory hallucinations, which he did report were fairly continuous. But when he's more composed and the emotions die down a bit - for instance after the anger has subsided - he might appear to be much more organised and composed, and he might be able to articulate himself a little bit better. Doesn’t mean to say that the symptoms aren’t still operating on his mental state, but he's better able to distract himself from them because he's able to - he's, he's less emotionally aroused.
Dr Eagle was asked directly whether any significance should be attached to the accused’s self-excusing statements on the morning of 11 August 2023, concerning manslaughter, sleep deprivation, paranoia and correct medication. I accept Dr Eagle’s opinion that the accused’s ability “to articulate himself” the next morning, after the psychosis had fluctuated downward to a calmer state, does not invalidate her conclusion that at the time of the homicide his psychotic disturbance of thought and perception was such that he probably could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were wrong. In the experience of Dr Eagle it is not unusual that people affected by schizophrenic spectrum disorders may, in calmer moments, be able to express justification for or denial of conduct, including by reference to their mental illness and/or treatment.
Dr Eagle reported the following conclusions that directly support the mental health impairment defence:
[15.5] […] The level of Mr Wheeldon’s preoccupation, in the context of his heightened emotional state and disorganised thought processes, would have impaired his capacity to understand events to an extent that would be considered clinically significant.
[15.6] I am of the view that Mr Wheeldon’s capacity to judge whether his actions were right or wrong, having regard to his overall presentation of capacity to reason, was impaired to a clinically significant extent. […] he was likely substantially impaired in his capacity to judge whether his actions were right or wrong.
I am satisfied on the balance of probabilities regarding the factual premises upon which Drs Chew and Eagle have formed their opinions and I accept the doctors’ conclusions to the same standard of proof. On the balance of probabilities I find that when the accused carried out the deliberate acts that directly caused the death of the deceased, he had a mental health impairment that had the effect that he did not know that his acts were wrong; that is, he could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, were wrong. The Court’s verdict follows accordingly.
On the charge that Robbie Wheeldon did murder Malcolm Wheeldon on 10 August 2023 at Pilliga the verdict of the Court is:
Proven but not criminally responsible.
That on 10 August 2023 at Pilliga Robbie Wheeldon did intimidate Danielle Newman with the intention of causing her to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic Violence) Act 2007 (NSW).
That on 10 August 2023 at Pilliga Robbie Wheeldon did resist Stephen Cruikshank being a Senior Constable executing his duty, contrary to s 60(1)(a) of the Crimes Act 1900 (NSW).
14 Orders Magistrate may make
(1) A Magistrate may make an order to dismiss a charge and discharge the defendant—
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant’s mental health impairment or cognitive impairment, or
(c) unconditionally.
(2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.
1 Order pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that Robbie Wheeldon be detained at the Long Bay Hospital, Malabar, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
2 Order pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that Robbie Wheeldon is referred to the Mental Health Review Tribunal.
3 Direct the Registrar to notify the Minister for Health of these orders within 7 days.
4 Direct the Registrar to notify the Mental Health Review Tribunal of the verdict and these orders and to provide to the Tribunal a copy of the Court’s reasons for judgment, the exhibits and the victim impact statements within 7 days.
5 Direct the Registrar to notify Justice Health of the verdict and these orders and to provide to Justice Health a copy of the Court’s reasons for judgment, the exhibits and the victim impact statements within 7 days.
6 The charge that on 10 August 2023 at Pilliga the accused did intimidate Danielle Newman with the intention of causing her to fear physical or mental harm is dismissed and the accused is discharged with respect to that matter unconditionally.
7 The charge that on 10 August 2023 at Pilliga the accused did resist Stephen Cruikshank being a Senior Constable executing his duty is dismissed and the accused is discharged with respect to that matter unconditionally.
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R
Wheeldon [2025] NSWSC 1456