In a previous post Paramedic killer not criminally responsible (November 9, 2024) I reported that Davies J sitting as the NSW Supreme Court had returned the special verdict of ‘act proven but not criminally responsible returned’ with respect to Jordan Fineanganofo who had, amongst other offences, stabbed and killed NSW paramedic Steven Tougher.   In that post I reported that the Court now had a number of options.  Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 33.  The court could:

… make one or more of the following orders–

(a) an order that the defendant be remanded in custody until a further order is made under this section,

(b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,

(c) an order for the unconditional or conditional release of the defendant from custody,

(d) other orders that the court thinks appropriate.

In his decision in R v Fineanganafo (No 2) [2024] NSWSC 1407, Davies J ordered that

… the defendant is to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until he is released by due process of law.

It was not a long judgment and rather than attempt to summarise it I simply set out below [3]-[8] of His Honour’s judgement particularly where His Honour was speaking to Mr Tougher’s colleagues.  The Judge said:

I have listened to the very moving tributes to Steven in the victim impact statements. There can be no doubt that he was a very special person who was greatly loved and respected. His brutal and senseless killing is difficult to comprehend. His killing has badly affected not only family members but also his work colleagues, particularly those who were involved in the events of that awful night. Their lives will never be the same again.

I want to commend the very brave actions of Mr James Arthur and Mr Daniel Nia who tried very hard to stop the defendant from stabbing Mr Tougher by kicking him and grabbing him in a bear hug, at very considerable risk to themselves. Mr Arthur and Steven’s other colleagues have been deeply traumatised by their experiences. I also acknowledge what Mr Appleyard, the victim of the threatened stabbing at the 7 Eleven at Ingleburn, experienced at the time, and how that has so badly affected his life since; and I acknowledge Ms Howe, the victim of the offence in the Bunnings Car Park, and how that has affected her. I also acknowledge the other victims of the offences committed by the defendant from whom we have not heard.

The outcome of the enquiry has not been, and will not be, easy for family members, colleagues and friends of Mr Tougher and for some members of the community to understand. What happened in the McDonalds carpark was a terrible tragedy. Mr Tougher who, as a paramedic, was employed to help and save people in unfortunate and tragic situations became the victim without any fault on his part. He said or did nothing to provoke what happened. Tragically, he came into contact with the defendant who had suffered from, and at the time suffered from, severe mental health issues that impaired his judgment and ability to think logically, and caused him to act in the way he did. The behaviour he manifested towards the other victims, all randomly threatened in one way or another, also demonstrates those mental health issues.

I extend to Mr Tougher’s wife, his parents, his sister and other members of his family, his colleagues and his friends, my sympathy and condolences on behalf of the Court for their loss.

It is important for everyone to understand the effect of the special verdict I found. The effect of the orders will be that the defendant will remain in custody and be held as a forensic patient to come under the supervision of the Mental Health Review Tribunal. The statutory scheme surrounding that Tribunal is such that the defendant will not be released until the Tribunal is satisfied that the safety of any member of the public, or of the defendant himself, will not be seriously endangered by his release: ss.29(d) and 84(2) of the Act. His case will be reviewed by the Tribunal as soon as practicable and will be subject to review at six-monthly intervals: s. 78 of the Act. If, at some stage in the future, the defendant comes to be released, it may be on conditions, and if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained: s.109 of the Act.

Dealing with mentally ill people, especially when they commit crimes, is not easy, in the sense that the interests of all involved need to be taken into account and protected. The Act under which I conducted the enquiry and will make the orders concerning the future of the defendant, is a relatively new Act that makes provision for how mentally impaired people who commit crimes are dealt with, building on developments in knowledge and experience since the earlier Act was passed 30 years previously. I understand that some will feel that what the Act provides is not satisfactory, and that the system itself is not satisfactory, but that is the way the Court and we, as a society, have to deal with tragedy, such has occurred here, where mentally impaired people commit these crimes.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.