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Supreme Court 14 May 2015

R v Thomas (No 2)

[2015] NSWSC 561

Assault & violence
CRIMINAL LAW SENTENCE ACCUSED UNFIT TO BE TRIED SPECIAL HEARING RECKLESSLY CAUSING GRIEVOUS BODILY HARM LIMITING TERM NOMINATED

Citation: R v Thomas (No 2) [2015] NSWSC 561
Court: Supreme Court of New South Wales
Date: 14 May 2015
Judge(s): R A Hulme J

Background

The accused, a 27-year-old man with a moderate intellectual disability, had been found the previous week to have committed an offence of recklessly causing grievous bodily harm against his mother. That finding was made at a special hearing conducted without a jury under the Mental Health (Forensic Provisions) Act 1900 (NSW), after the accused was determined to be unfit to be tried. The special hearing operates on "the limited evidence available," reflecting that an unfit accused cannot participate to the same degree as in a standard criminal trial.

The assault arose from a spontaneous outburst during a family argument about the accused's resignation from his job as a kitchen hand. His mother, whose health had been deteriorating over the preceding two months, suffered a subarachnoid haemorrhage (a bleed around the brain) as a result of the punch. He had been in custody since his arrest on 31 January 2013, a period of approximately two years and three and a half months.

This second judgment addressed the further step required under the legislation: determining whether imprisonment would have been imposed in a normal trial, and if so, nominating a "limiting term" representing the court's best estimate of the sentence that would have been imposed.

  • Whether, had the special hearing been a normal criminal trial, a sentence of imprisonment would have been imposed on the accused.
  • What limiting term should be nominated under section 23(1)(b) of the Mental Health (Forensic Provisions) Act 1900 (NSW), taking into account the accused's time already spent in custody.
  • What orders should follow from the nomination of a limiting term, including the accused's custody status and any referral to the Mental Health Review Tribunal.

Decision

Both parties agreed that imprisonment would have been imposed had this been a normal trial. Hulme J was therefore required to move to the next statutory step: nominating a limiting term as his best estimate of the sentence that would have applied.

On objective seriousness, his Honour assessed the offence as sitting in the middle range. The degree of force was moderate, but the consequences were severe given the mother's condition. The assault was entirely spontaneous and unpremeditated, arising from situational stress rather than any planned or ongoing conduct.

On subjective matters, his Honour found the accused's moral culpability to be relatively low. The accused's moderate intellectual disability was a significant factor. Hulme J expressly excluded general deterrence and denunciation as relevant sentencing considerations, finding the accused was not an appropriate subject for those purposes. The accused had one prior matter, dealt with by dismissal under section 32 of the Act, and presented no particular danger to the community.

Hulme J nominated a limiting term of one year and six months, backdated to the date of arrest. Because the limiting term had already expired by the time of the hearing, the practical effect was the accused's immediate release. The court noted that while section 24 ordinarily requires referral to the Mental Health Review Tribunal, the accused would cease to be a forensic patient upon the making of the orders, so a formal notification to the Tribunal was considered appropriate in lieu of a full referral.

Orders Made

  • A limiting term of 1 year 6 months was nominated, dating from 31 January 2013 and expiring on 30 July 2014.
  • The accused was directed to be released forthwith.
  • The Registrar was directed to notify the Mental Health Review Tribunal of the orders.

Key Takeaways

  • Under section 23 of the Mental Health (Forensic Provisions) Act 1900 (NSW), where a court presiding over a special hearing determines that imprisonment would have been imposed in a normal trial, it must nominate a limiting term representing its best estimate of the sentence that would have been imposed.
  • A moderate intellectual disability that did not require professional oversight was nonetheless treated as a significant factor reducing moral culpability, and the Supreme Court excluded general deterrence and denunciation as sentencing considerations in those circumstances.
  • Time already spent in custody may be taken into account when nominating a limiting term, and the court backdated the term to the date of arrest, resulting in immediate release.
  • Where a nominated limiting term has already expired at the point of sentencing, the accused ceases to be a forensic patient subject to Mental Health Review Tribunal oversight, though formal notification to the Tribunal was considered appropriate in this case.
  • A prior matter dealt with by way of dismissal under section 32 of the Act was noted as part of the criminal record but was given limited weight, and its particular nature was reflected in the court's assessment that the accused posed no particular danger to the community.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1900 (NSW), ss 23, 24, 32, 52
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm, maximum 10 years imprisonment)

Cases:
- R v Thomas [2015] NSWSC 537 (the primary special hearing judgment, setting out the facts and subjective circumstances)