R v Thomas Dillan Stone

[2019] NSWSC 195

Supreme Court

New South Wales

Medium Neutral Citation:	R v Thomas Dillan Stone [2019] NSWSC 195
Hearing dates:	8 and 11 February 2019
Date of orders:	04 March 2019
Decision date:	04 March 2019
Jurisdiction:	Common Law - Criminal
Before:	Hidden AJ
Decision:	Sentenced to imprisonment for 23 years, NPP 17 ½ years, from 6 February 2017.
Catchwords:	SENTENCE – CRIMINAL LAW – murder – plea of guilty – killing by one forensic patient of another forensic patient at Morisset Hospital – whether there was a causal link between the offender’s mental illness and the offence – whether the offender a continuing danger to the community.
Legislation Cited:	Crimes Act 1900, s 23A Crimes (Sentencing Procedure) Act 1999, ss 21A(2), 61 Mental Health (Forensic Provisions) Act 1990, s 43A
Cases Cited:	Cramp v R [2016] NSWCCA 305 Kelsall v R [2017] NSWCCA 240 Laurie v R [2015] NSWCCA 77 Potts v R [2012] NSWCCA 229 R v Heatley [2006] NSWSC 1199 R v Hejabian [2016] NSWSC 1692 R v Impson [2018] NSWSC 1490 R v Morris [2017] NSWSC 637 R v Neave [2012] NSWSC 229 R v Poynton [2018] NSWSC 1693
Category:	Sentence
Parties:	Crown Offender: Thomas Stone
Representation:	Counsel: Crown: Mr A. Morris Offender: Mr P. Krisenthal   Solicitors: Crown: Cameron Reynolds, Office of Director of Public Prosecutions NSW Offender: Robyn Fraser, Legal Aid NSW
File Number(s):	2017/38577
Publication restriction:	No

Judgment

1. The offender, Thomas Dillan Stone, has pleaded guilty to the murder of Robert James Mitchell at Morisset Hospital in the early evening of 6 February 2017. The offender was 25 years old at the time and the deceased, Mr Mitchell, was 41. Both men were forensic patients pursuant to the Mental Health (Forensic Provisions) Act 1990. I have received a comprehensive statement of facts, which I shall summarise.

2. On 6 March 2013, after a trial in the District Court, the offender was found not guilty by reason of mental illness of charges of the aggravated detention for advantage of his grandmother and his mother. There was evidence that at the relevant time he was suffering an episode of psychosis produced by an underlying schizophrenic illness. I shall return to this later in these reasons. He was ordered to be detained and came under the purview of the Mental Health Review Tribunal.

3. The statement of facts summarises the Tribunal’s findings at six monthly reviews between April 2013 and October 2016. Over that period those treating the offender observed a steady improvement in his mental state, his conduct and his attitude. For much of that period he remained at the high security Forensic Hospital at Malabar, but in September 2015 the Tribunal was satisfied that he was suitable for a medium security placement and ordered his transfer to Morisset Hospital. He was admitted to that hospital on 4 February 2016.

4. Throughout 2016, his mental state appeared to be stable with no behavioural, psychotic or mood disturbances. He was granted unsupervised day leave within the grounds of the hospital, and supervised day leave with approved counsellors and family members. It appears that he continued to progress well such that, in November 2016, he was permitted to live in the self-contained cottages within the hospital grounds. There he presented with a positive attitude, and no concerns were raised by members of staff or his family members.

5. I shall turn later to his psychiatric history and his mental state at the time of the murder.

6. He was placed in Wren cottage, a self-contained dwelling with four bedrooms, a shared bathroom and shared living and kitchen areas. Three other patients lived in the cottage, one of them the deceased.

The offence

7. In the afternoon of Monday, 6 February 2017, the offender was on unsupervised day leave from the hospital and was transported by shuttle bus with other patients to the town of Morisset. He spent some time at a gym and then walked to a Woolworths supermarket. There he bought a number of items, including an eight-inch cook’s knife. Later in the afternoon he and other patients were transported back to the hospital.

8. At about 6:20pm the deceased was in his room. The offender approached him there and stabbed him three times. One stab wound was to the left side of his neck below the ear. This was the fatal blow. The other stab wounds were a superficial wound to the lower left front of the neck and a wound to the inner aspect of the left upper arm.

9. The deceased was heard by other occupants of the cottage to yell, “Stop, stop. Tom, Tom.” The offender was observed walking away from the cottage, holding the knife. The deceased was heard to say, “Tom…Help me, help me. He stabbed me.” He managed to make his way to an administration building, where he lost consciousness. Ambulance officers arrived a little after 7:00pm. They attempted to revive him by cardiopulmonary resuscitation, without success. At 7:19pm it was accepted that he had died and treatment was ceased.

10. In the meantime, the offender had walked to an area on the shore of Lake Macquarie adjacent to the hospital. He threw the knife away and it landed in shallow water in the lake, where it was later found by police. At 6:40pm he called the ‘000’ emergency line, and announced that he had “just stabbed someone”. He told the operator that he was at Morisset Hospital and was standing by the lake. Asked who he had stabbed, he said “it was just another patient”, and he provided Mr Mitchell’s name. Asked if the victim required an ambulance, he said “probably”. Asked why he had stabbed him, he said that he “felt like it.”

11. In answer to questions from the operator, he gave his name, age and date of birth. The operator said the police were on their way and, in response to her questions, he gave an accurate description of his physical appearance and his clothing. He said that he would wait for police at a nearby pergola.

12. That was where he was when Senior Constable Gregory Naughton and Constable Jamie-Lee Howard arrived about 10 minutes later. Asked by Snr. Const. Naughton what was going on, he replied “I stabbed someone in the neck.” He was handcuffed, arrested and cautioned. He indicated that he understood the caution. He supplied his personal particulars.

13. In answer to questions from Const. Howard, he named the deceased and said that he “just jabbed him in the neck.” Asked whether the deceased had done anything to him, he replied “No. I just felt like it.” He told police where he had obtained the knife and described it. Asked what he had done with it, he indicated the area near the shore of the lake where it was later found.

14. The offender was taken to Belmont Police Station, where he was charged with murder. He was conveyed to the MRRC, where on Wednesday, 8 February 2017 he was examined by Dr Sarah-Jane Spencer, psychiatrist. In the course of that examination he made a number of admissions about the killing of the deceased.

15. He told Dr Spencer that the deceased was “just a housemate. Not friends, not enemies either.” He said that he thought people underestimated him (the offender) due to his small stature, and that he chose the deceased because he was a “big target.” The deceased was “bigger…pretty fit. He went to the gym. He was tall as well.” He denied being angry with the deceased. He said that he was “quite calm” at the time. He added that he did not want the deceased to survive, and that he wanted to kill someone.

16. He told Dr Spencer that he was going “really good” at Morisset Hospital. He was going out and had contact with his aunt and uncle every couple of weeks. He said that he was well, had been taking his medication, was not hearing voices and was not delusional. However, he said that he was “still getting bad thoughts to hurt people and live in gaol”, and that these thoughts “never went away.” He stated that he preferred gaol to Morisset Hospital as a forensic patient. In the gaol environment, he said, “you can stand up for yourself… violence is the language in gaol to solve your problems.” He added that he was frustrated at Morisset Hospital, where he was not able to resolve conflict with violence. He made it clear to Dr Spencer that he hated being in the hospital, and that he committed the offence so that he could return to gaol. He thought that he had to do something serious or he would end up in a high security hospital setting.

17. He told Dr Spencer that he had a plan for the offence, and that he had bought the knife that day. He briefly described the killing, saying that he had walked into the deceased’s room with the knife behind his back. He “talked to him a bit” and stabbed him in the neck. The deceased jumped up and said, “What the fuck!”. Then, he said, “it all went a bit of a blur.” They were staring at each other, and the deceased was holding his neck. He said that the deceased “moved towards me”. He only remembers stabbing him once, but added that maybe “I stabbed him again when he lunged at me.”

18. He told Dr Spencer that the “felt quite good” and that he wanted to “relax” and accept what he had done. He added that he did not think that he was going to get out of gaol for a long time. Dr Spencer noted that his demeanour was relaxed and that at times he laughed inappropriately. She described the offender as emotionally detached, callous and cold in his presentation.

19. The offender was later examined by three well known forensic psychiatrists, Dr Olav Nielssen, Dr Richard Furst and Dr Jonathan Adams. I shall turn to their evidence later.

20. An autopsy was performed upon the deceased on 8 February 2017. The forensic pathologist, Dr Alan Cala, noted the three wounds to which I have referred, and concluded that the deceased had died from the stab wound to the neck, most likely from blood loss. There were no defence wounds which might have indicated grappling or fighting by the deceased during the course of the attack.

Subjective Case

21. As noted, the offender was 25 years old at the time of the offence. He is now 27. He has a relatively brief criminal record in the Children’s Court and the Local Court for a variety of offences, dealt with by fines, bonds or short prison terms. Broadly, they comprise offences of dishonesty, on two occasions offences of violence, and on several occasions possession of cutting instruments.

22. I have been supplied with the facts of four matters on his record:

• On 14 January 2010, he was arrested for shoplifting. When searched, three kitchen knives were found in his backpack and another knife of the same kind in his trousers.

• In the early hours of 13 August 2010, he was found to be in possession of a meat cleaver with which he was attempting to cut through a chain securing a bike. He was well intoxicated at the time.

• On 20 October 2010, he was again arrested for shoplifting, and was found to be in possession of a pair of scissors which, he said, he used to cut up his “pot.”

• On 7 December 2010, he assaulted his grandmother by elbowing her, causing her to fall to the ground, and made off with her car. This incident led to charges of common assault and taking and driving a conveyance without the owner’s consent.

23. His disturbed background emerges from the history recorded in the various expert reports, together with a statement of his aunt, Ms Heidi Thornton. He was born in Australia. His mother was born in Canada but his father, who is now deceased, was Australian. His early life was disturbed. His parents separated when he was three years old, and he moved to Canada with his mother and his maternal grandmother, Elizabeth Topper, who was separated from his grandfather.

24. Thereafter his grandmother became his primary carer, because of his mother’s mental illness and her drug and alcohol abuse. She spent several years in a psychiatric hospital in Canada before the family returned to Australia when he was about 12. Not long before this his father had been murdered in Queensland, with the result that they had had no contact during his formative years.

25. He left school in mid-secondary school, apparently as a result of conduct difficulties. His employment history was limited. He had only one intimate relationship, beginning when he was 19 years old, which lasted about a year. Otherwise his associates had been mainly people he met at psychiatric facilities who had mental health issues of their own.

26. From his teenage years he had abused alcohol and cannabis, and had experimented on occasions with LSD and MDMA (ecstasy). In 2011 he began using intravenous methamphetamine, together with cannabis and alcohol.

27. When the family returned to Australia they settled on the central coast. The offender lived with his grandmother and at times his mother until he was 17. He then moved in with friends for two years, and thereafter lived alone in a caravan park, until being taken into custody in relation to the offences against his grandmother and his mother. His grandmother died in 2015.

28. I turn now to his psychiatric history and the evidence of his mental state at the time of the murder, which raise issues central to the resolution of this matter.

Psychiatric evidence

29. I received reports from the three forensic psychiatrists to whom I have referred, all of whom also gave oral evidence. Dr Nielssen and Dr Furst were retained on behalf of the offender and Dr Adams by the Crown. All three provided comprehensive reports prepared while the matter was still in the Local Court and before the offender had entered his plea of guilty. Dr Furst and Dr Adams prepared supplementary reports, bearing on sentencing issues, shortly before the sentence proceedings in this Court. By way of background, I also received a report prepared in 2004 by a Canadian psychiatrist, Dr Myles Blank, and a psychological report of Ms Debbie Case which was prepared in 2012 for the proceedings in which the offender was found not guilty by reason of mental illness of the offences relating to his grandmother and his mother. Finally, I have the judgment of the trial judge in that matter, King DCJ, who heard it without a jury.

30. Dr Blank’s report was prepared in anticipation of the family’s return to Australia. He had been caring for the offender since 1999. The offender had been displaying anger and irritability, both verbally and physically, and had been diagnosed with ADHD and a variety of other disorders. He had been managed with supportive and play therapy techniques, and had also been prescribed the anti-psychotic drug, Risperidone. At the time of his report Dr Blank’s diagnoses were Anxiety Disorder not otherwise specified and Behaviour Disorder not otherwise specified (including features of ADHD and Oppositional Defiance Disorder). He made various recommendations about the offender’s continuing care in Australia.

31. The offender told Dr Adams that from the age of about 7 he was always very angry and violent if he didn’t get his way. His mood would change abruptly, sometimes for no reason. He had difficulty controlling his mood, with outbursts of verbal and physical aggression, as well as damaging property. He had an anti-authority attitude and described “opposition to his teaching staff.”

32. In 2005, and again in 2010, he was admitted to the Mental Health Unit at Wyong Hospital when he had high energy levels and was very agitated. At the 2010 admission he described having difficulty controlling homicidal thoughts and gave a history of auditory hallucinations. The hospital records also noted heavy cannabis and poly-substance abuse. He was discharged by a psychiatric registrar, who was of the opinion that his hallucinations were not consistent with psychosis. In his first report Dr Furst expressed the view that that discharge was premature, and that the hallucinations were “highly likely” to have been the product of a pre-existing schizophrenic illness.

33. To Dr Furst and Dr Adams the offender described a pattern of acting strangely, including talking to himself, and various delusional experiences from the end of 2010 throughout 2011. He acknowledged not having been compliant with his regime of medication over that period and not having engaged with mental health services, and tended to ascribe those experiences to his alcohol and drug use. However, it was Dr Furst who was engaged on his behalf to prepare a report for the District Court proceedings before King DCJ, and he had described to the doctor a more florid pattern of delusions experienced in January 2012, as he had to Ms Case, the psychologist.

34. He told Dr Furst that he had been camping in early January because he wanted to “get away from people.” He described feeling a lot of anger and increased levels of energy. He said that this had been “building up from about September to December and I had to get away.” Apart from delusions of reference, he said that he was hearing voices calling him and telling him he was going to be shot in the head with a nail gun. He believed that his late father was a “demon”, and also attributed “good” and “evil” to himself. It was at that time that the conduct giving rise to the District Court proceedings occurred.

35. On Monday, 9 January 2012, his grandmother picked him up from the camping area and they went to his mother’s house at Blackwall. There ensued a bizarre episode, which can be described briefly. He became agitated and verbally abusive, saying that his mother and his grandmother were not supporting him and enquiring why they tormented him. He said, “Why is it that you make me hurt you? You are family and supposed to understand.” He assaulted both women quite seriously, punching both of them. He demanded that they hand over their phones and seized his grandmother’s car keys.

36. He told both women to go to the car, and he drove off. His mother had made a meal to deliver to a friend of hers. He stopped and allowed her to do so, apparently expecting her to return to the car. She did not and notified police of what was happening. He drove on with his grandmother in the car, and effectively detained her until early the following morning. On one occasion he assaulted her again, punching her several times to her head area.

37. For the purpose of the charges of aggravated detaining for advantage, the advantage was said to be preventing any investigation of his assaults upon the two women, and those assaults constituted the circumstance of aggravation. In finding the offender not guilty by reason of mental illness, King DCJ accepted the opinions expressed in Dr Furst’s report and an opinion to the same effect in a report of Dr Stephen Alnutt, engaged on behalf of the Crown. Dr Furst concluded that he had been “suffering from an acute episode of psychosis at the time in question, probably as a manifestation of his underlying schizophrenic illness, and most likely precipitated by stopping his medications and abusing alcohol and cannabis.”

38. Upon his entry into custody as a forensic patient, a psychiatrist diagnosed him as suffering from schizophrenia (paranoid type) and cannabis and poly-substance abuse. Reviews by the Mental Health Review Tribunal up to February 2015 recorded him as describing “recurrent violent fantasies” and “ongoing thoughts about hurting people”. He admitted having used drugs in prison, and in May 2014 he spent two days in seclusion for assaulting a fellow patient.

39. A review in August 2014 noted an improvement of his condition following a change in his medication. The February 2015 review recorded a relapse in hallucinations and persecutory ideas following a reduction of his medication, but after a further adjustment of the medication he appeared to respond well with “no overt psychotic symptoms or aggressive episodes noted.” At the review on 20 August 2015, the treatment team reported a “remarkable transformation” in relation to his conduct and attitude. There had been no aggressive incidents and he was seen to have “developed insight into his mental illness since the last review.” The treating team considered that he could be managed “safely and effectively in a less restrictive environment.” Transfer to Morisset Hospital was recommended and, as I recorded earlier, it took place in February 2016.

29. In reviews in April and October 2016, the treating team reported that his mental state had remained stable, and that he continued to make “good progress with no emergence of psychotic symptoms.” He was reported to be engaging well with his treating psychologist. It was in the light of this observed progress that he was permitted to live at Wren cottage, and his leave entitlements extended to unsupervised day leave from the hospital. He was participating in programs and was said to present with a “positive attitude to his placement there”.

30. The offender’s explanation to the three forensic psychiatrists of the circumstances of the murder was broadly consistent with what he had told Dr Spencer when he first went into custody, but more detailed. He told all three of them that he was frustrated with the forensic patient process and considered his progress through it too slow. He said that he should not have been found not guilty by reason of mental illness of the offences relating to his grandmother and his mother, insisting that they were the product only of his drug and alcohol abuse. His view was that if he had pleaded guilty to those offences he might have received a sentence which by now would have expired. He reiterated that he preferred to be in gaol, where he would feel “more comfortable.”

31. He told the three doctors that his thoughts of hurting other people had never gone away, but he did not disclose this to those treating him. However, there is an apparent inconsistency in his account of when it was he decided to kill the deceased. To Dr Nielssen he said, “I just woke up one day and decided to do it.” To Dr Furst he said, “I was going to kill him. I just woke up that day and said ‘today is the day’”. However, he told Dr Adams that he had been considering killing the deceased “maybe a week” before he did so. He told Dr Nielssen and Dr Furst that he did not like the deceased and described some behaviour on the deceased’s part which might be seen as mildly provocative. Dr Furst noted, however, that this was at odds with what he had told police and others. To Dr Adams he said that at no point did the deceased provoke him or act in a hostile manner towards him.

32. At no stage did he express any remorse for what he had done. Asked by Dr Nielssen whether he felt sorry for the deceased, he said that it had “nothing to do with him… he was just a means of escape.” He added, “I did not see any other way… the thoughts were still there… it was always going to happen… as soon as I done it I felt a weight had been lifted from my shoulders… the thoughts have gone.”

33. He told Dr Adams that he had considered the “pros and cons” of the offence. As to the pros, he said, “I’d have nothing to lose… one man’s freedom might be another man’s gaol.” He described his dislike of life in a normal society. Asked about the cons, he replied, “I can’t really think of any.” He said that he was aware the deceased had a brother and grandmother, and commented that they would of course be upset by his death. He also considered that his own family would be “quite disappointed”, saying that was “a given.” He then said, “but I’ve got to do what’s best for me, I’m living my life, not someone else’s life.” Asked by Dr Adams what he was thinking at the time of the offence, he replied, “I was excited… it’s been weighing on my mind for a long time… it physically felt like a ton of weight had been lifted off my shoulders.”

34. To all three doctors he insisted that he was functioning well at the time, and he did not describe experiencing any features consistent with psychosis.

35. All three psychiatrists diagnosed the offender with schizophrenia and substance use disorder. An issue which I must determine is whether his schizophrenia contributed in any way to the commission of the crime. On this issue the views of Dr Nielssen and Dr Furst differed from those of Dr Adams.

Mental state at the time of the offence

47. In each of their initial reports, prepared before the offender entered his plea of guilty, the forensic psychiatrists considered the partial defence of substantial impairment by abnormality of mind (s 23A of the Crimes Act 1900). By his plea of guilty the offender abandoned that partial defence, but he did advance in mitigation of sentence the proposition that his crime was the product of his mental illness. In their reports each of the experts expressed a view about any causal link between his schizophrenia and the offence, and each of them adhered to that view in oral evidence. This was an issue to which considerable attention was paid in the course of the sentence proceedings, both in the oral evidence of the experts and in final submissions. I believe, however, that I can explain the issues and express my conclusion fairly succinctly.

48. I do not have a report from Dr Spencer, but the statement of facts records her conclusion that the offender’s “underlying personality structure was the overwhelming contributing factor to the offending behaviour.” She observed that there was no evidence of any recent deterioration of his mental state at the relevant time and that he appeared to have been compliant with his treatment.

49. Dr Adam’s conclusion was to the same effect. In his first report he noted the offender’s clear and coherent account of issues concerning his offending behaviour, and his denial of experiencing any positive symptoms of schizophrenia or any features of mood disorder. The doctor noted that this was consistent with the observations of the treating team at Morisset Hospital at that time. He referred to the offender’s motivation for the offence, his wish to return to gaol custody. The offender himself had acknowledged that this might be seen as unusual, particularly in the light of “his progress down the forensic mental health pathway.” However, he did not elicit any evidence to suggest that this wish was “the result of a delusional belief or an obsessional belief.” He saw it as best understood “in terms of his animosity towards the forensic mental health system, preference for the custodial environment, and anti-authority standpoint.” As to the offender’s longstanding urge to kill, as the offender himself had expressed it, he thought it clear “that this urge or thought process was derived from himself, as opposed to an external source.” He found no evidence that it could be considered “a delusional belief, for example, as a product of thought insertion.”

50. Addressing the elements of the defence of substantial impairment, Dr Adams accepted that the offender was suffering from “an underlying condition” at the relevant time, namely schizophrenia, but there were no reasonable grounds to conclude that it caused a relevant “abnormality of mind.” On the offender’s own account, there was no impairment of his capacity to judge right from wrong, or to understand events, and the degree of planning of the offence demonstrated that his capacity to control himself was not impaired.

51. In oral evidence Dr Adams reiterated that he saw no evidence of positive symptoms of schizophrenia, such as delusions, hallucinations or thought disorder. He added that he also saw no clear evidence of negative symptoms, such as lack of drive, lack of motivation, paucity of thought content or the like. His documented progress and participation in the rehabilitation program at the hospital were inconsistent with symptoms of that kind. Moreover, there was no suggestion of any irritability, threatening behaviour, aggression or violence for a significant period prior to the offence.

52. In his initial report Dr Furst observed that the offender’s reasons for the offence were not entirely clear, but that it would appear that it related to “intrusive thoughts of hurting others and/or killing other people.” The doctor noted that thoughts of this kind dated back to his childhood and late teens, and that he appeared to be “quite callous and devoid of emotions, apart from anger and periods of acute emotional dysregulation.”

53. The doctor was of the opinion that his actions represented a planned killing for no other obvious reason apart from his “apparent lack of capacity to resist his urges/fantasies and possibly a desire to return to gaol rather than remain in Morisset Hospital.” His understanding of his actions and an acknowledgement of their wrongfulness was accepted, but Dr Furst concluded that it might be argued that his “schizophrenic illness and underlying personality disorder/emotional disturbance was sufficient to impair his capacity to control himself at the time in question.”

54. In his supplementary report and in oral evidence, Dr Furst reiterated the connection he saw between the offender’s violent and homicidal thoughts and an underlying schizophrenic illness. In his supplementary report he wrote:

“The relationship between schizophrenic illness in relation to cognitive deficits, negative symptoms, emotional deficits, lack of empathy and apparent sadistic thoughts/fantasies is unclear. However, in Mr Stone’s case, there is evidence of previous homicidal fantasies remitting when treated in hospital with antipsychotic medication, such as in October 2010, when treated with Risperidone after being admitted to Wyong Hospital and having further treatment in the community. There was also improvement in his condition in the early months of 2011, suggesting a link between his schizophrenic illness, the control of his psychotic symptoms, and his capacity to resist apparent underlying violent thoughts, mitigating to some degree against the seriousness of his actions.”

55. In his report Dr Nielssen noted that schizophrenia “is a group of disorders that are essentially a form of neuropathy affecting the frontal and temporal lobes of the brain, which manifest a range of syndromes depending on the areas of the brain most affected.” He went on to describe various degrees of the condition, ranging from “unremitting auditory hallucinations, with or without bizarre beliefs” to “fairly circumscribed delusional beliefs and only subtle impairment” of a person’s “communication, living skills and capacity for logical thinking.” He added that most people with the syndrome “have at least some impairment in their capacity to recognise the feelings of other people and in their ability to form social relationships.”

56. He saw manifested in the offender’s schizophrenic illness a “quite marked impairment in his capacity for empathy, which is apparent in his inability to consider the distress he caused to Mr Mitchell and anyone who might be affected by his death… .” He also saw the illness as manifesting itself “with marked impairment in his capacity for logical thinking, which is most apparent in the reasoning around the offence itself, and his continued belief that the offence was a sensible solution to his situation, and also his belief that it was inevitable that he would act on his violent thoughts.”

57. Dr Nielssen wrote that the offender’s account of these thoughts raises the possibility that they were themselves a symptom of his schizophrenic illness. He noted that he had discussed these thoughts at various times with treating doctors, but had concealed them in recent times.

58. Addressing the elements of the partial defence, Dr Nielssen expressed the view that there was an abnormality of mind arising from the offender’s schizophrenic illness which affected his perception of events, his ability to control his actions, and his ability to judge right from wrong. These conclusions were based on the offender’s belief that it was inevitable that he would act on his violent thoughts, and with what the doctor described as a “gross impairment in his capacity for empathy and his ability to consider the effects of his actions on himself and on other people.”

59. In oral evidence Dr Furst explained that schizophrenia is a chronic but fluctuating condition. There is an acute phase, characterised by hallucinations, thought disorder or delusions, and typically paranoia. There is a residual phase, perhaps between acute episodes, characterised by negative symptoms such as feeling low, lacking motivation, social removal or avoidance, or difficulty with initiating behaviour. Beyond that, he explained, there might be what are classified as cognitive problems emanating from brain dysfunction, such as problem solving, emotional expression, and logical thought.

60. He did not see lack of empathy as a typical negative symptom, but said that the effect of schizophrenia on the frontal lobe of the brain often leaves to disturbed emotional responses, “like blunted affect and lack of emotional warmth”. In the offender’s case, he saw that as exemplified by the 000 call, which he thought was remarkable for its “lack of empathy and lack of emotional response”.

61. Dr Furst described the offender’s decision to kill the deceased so as to return to gaol as “illogical”. He noted that schizophrenia impairs a person’s decision making capacity and higher order of thinking. It can lead to the lack of insight which he described in his second report. His conclusion was that the offender’s schizophrenia did play a role in the commission of the offence.

62. Dr Nielssen’s oral evidence was to the same effect. He said that schizophrenia is due to an underlying neurodegenerative condition, which remains when the disease is not in an acute phase. Persons having the disease are still left with deficits of self-awareness and the capacity for logical thinking and rational decision making. He described it as “a very disabling condition”. The offender had progressed well at Morisset and Dr Nielssen was of the view that he was approaching the end of his time there and might have achieved further leave entitlements or even conditional release. He described the offender’s decision to jeopardise all that by his offence as “a mad thought” by the standards of anyone else, and demonstrated a complete lack of empathy for the victim, with whom he had no rational grievance. He characterised all this as “illogical thinking arising from the manifestation of his mental illness”.

63. I received a handwritten statement of the offender, in which he maintained the views which he had expressed to the psychiatrists. He complained that throughout his life he was made to believe that he was mentally ill when he was not, that his real problem was drug and alcohol abuse, that he should never have been a forensic patient, and that he decided it would be “much easier to kill someone and go to gaol to live forever than to put up with all the shit in hospital…”. Both Dr Furst and Dr Nielssen saw in that letter a lack of insight typical of his schizophrenic illness.

64. On this issue the offender bears the burden of proof on the balance of probabilities. I prefer the evidence of Dr Furst and Dr Nielssen to that of Dr Adams, and I satisfied that there was a causal link between his mental illness and the offence. This was a young man whose progress as a forensic patient was such that he could look forward in due course to being released into the community, albeit subject to an enforced regime of treatment and supervision into the indefinite future. Making all due allowance for his anti-authoritarian and antisocial outlook, and the cynicism about living in the community which he expressed to Dr Adams, I cannot accept that in a rational frame of mind he would have preferred to spend what he envisaged as a very lengthy period, perhaps the rest of his life, in gaol. Nor can I accept that in a rational state of mind he would have sought to achieve that end by killing another forensic patient, selected more or less at random. The irrationality of this reasoning process, and the utter lack of empathy which it demonstrates, are best explained by his underlying schizophrenic illness.

Future Dangerousness

65. That said, an important matter to be considered is the extent to which the offender poses a danger to the community in the future. In his supplementary report Dr Adams expressed his opinion in this way:

“…it is reasonable to conclude that Mr Stone manifests a significant risk of future violence, if the management plan in place is not assertive and designed specifically to meet his risk management needs. It is evident that he has historically engaged in violent behaviour in the context of a relapse of his schizophrenic illness. More recently with the murder offence, he has engaged in serious violence in the absence of apparent positive symptoms of schizophrenia (delusions, hallucinations and thought disorder)”.

66. Similar views were expressed by Dr Nielssen and Dr Furst. In his report Dr Nielssen wrote:

“Mr Stone requires indefinite treatment with antipsychotic medication under the supervision of a psychiatrist. He reported that his violent thoughts had abated from the time he committed the offences. However, given the potential for harm to fellow prisoners, he may do better being treated with clozapine, which is reported to have a specific effect on the violent impulses associated with schizophrenia and to reduce the incidence of both violence and suicide among people with that illness”.

67. In his supplementary report Dr Furst recommended a treatment regime, and in oral evidence agreed with the proposition that for the foreseeable future, either during the sentence or after the sentence, the offender would need a “rigid and structured treatment plan and implementation of that plan”.

68. All three psychiatrists noted that, notwithstanding the murder and the sentence which must be imposed for it, the offender remains a forensic patient as a result of the District Court decision in 2013. He may well retain that status after the expiration of any sentence which I might pass, and would remain subject to review by the Mental Health Review Tribunal. No doubt, given the circumstances of the murder, the Tribunal would approach any prospect of his being released into the community with great caution. Section 43(a) of the Mental Health (Forensic Provisions) Act 1990 provides that the Tribunal cannot order the release of a forensic patient unless it is “satisfied, on the evidence available to it, that the safety of the patient or any member of the public will not be seriously endangered by the patient’s release”.

Victim Impact Statement

69. I received a victim impact statement from the mother of the deceased, Ms Gay Crooks. Ms Crooks read the statement to the Court. As one would expect, she was distressed and it was no easy task, but she did so with dignity and courage. The statement was an eloquent expression of the grief and outrage she feels as a result of the violent death of her son, and of the enduring effects this tragedy has had upon her life. After she read the statement I expressed my deepest sympathy to her and to other members of the family in their loss, and I do so again now.

70. My duty is to sentence the offender in accordance with established principles, taking into account a variety of factors raised by the evidence, and I am well aware that nothing this Court could do could ever assuage their pain.

Sentencing Issues

71. The Crown prosecutor submitted that this offence calls for the imposition of the maximum sentence for murder, imprisonment for life. He argued that it met the criteria set out in s 61 of the Crimes (Sentencing Procedure) Act 1999, which provides that a life sentence is to be imposed on a person convicted of murder “if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence”.

72. Put shortly, the Crown prosecutor argued that this offence amounted to the callous killing of a man who had done nothing to provoke it, unmitigated by mental illness, and perpetrated by a man who remains a serious danger to the community. Alternatively, he argued that even if the crime were found to be the product of the offender’s mental illness, this only confirms the danger which he presents to the community in the future. He noted that the killing occurred at a time when the offender appeared to professionals trained in the care of the mentally ill to be stable and progressing well in his rehabilitation. He also relied on the offences of assault and possession of knives in 2010, recorded in the offender’s criminal history, which might be seen in the context of the manifestation of his mental illness at that time.

71. Both the Crown prosecutor and counsel for the offender, Mr Krisenthal, referred to authority on s 61, but I do not find it necessary to examine it. I reject the Crown prosecutor’s submission. The killing was a result of an attack with a knife which inflicted three wounds, one of them fatal while the other two were relatively minor. It was not attended by gratuitous cruelty or brutality. It was influenced by the offender’s mental illness and, while the issue of the continuing danger he might pose to the community is important, it is not such as to call for consideration of the maximum sentence.

72. Nevertheless, the offence is a serious one of its kind. The offender attacked a man to whom he bore no ill will and who had done nothing to provoke the attack. He intended to kill the deceased. The offence was planned. Whether the plan was formed on the day of the offence or at some earlier time is of no moment. The Crown prosecutor raised two other matters of aggravation set out in s 21A(2) of the Crimes (Sentencing Procedure) Act: that the offence involved the use of a weapon and might be seen as having been committed in the home of the victim, but in the circumstances of this case they are of little significance.

73. In accordance with well established authority, I take into account the fact that the offence was influenced by the offender’s mental illness as a matter reducing his moral culpability for it and the need for general deterrence to be reflected in the sentence which I pass. I also accept the evidence of Dr Nielssen and Dr Adams that his mental illness is likely to make the experience of prison more burdensome for him.

74. A countervailing factor, however, is the danger which the offender poses to the community. As I have recounted above, he told Dr Nielssen that after the killing of the deceased he felt that a weight had been lifted from his shoulders and that his homicidal thoughts had gone. In his report Dr Nielssen records that he asked him whether he might do “something similar again”, to which he replied, “No…as I said the thoughts went away”. In his handwritten statement to the Court the offender claimed that in recent times he had been in a better frame of mind with no psychotic symptoms, and that he “finally felt emotions, remorse and empathy” for the first time in his life. I would like to think that all this is true, but I could not be confident of it. He expressed remorse in the handwritten statement, but I do not accept it as genuine and Mr Krisenthal did not rely upon it.

75. There is force in the Crown prosecutor’s observation that the offender was able to present a false picture of his mental state in the period leading up to the killing, concealing from his treating team his homicidal thoughts. No doubt, that would now lead to those treating him to assess his progress with great care. True it is that he might remain subject to review as a forensic patient after the expiration of the non-parole period which I impose or, maybe, the entire sentence. Nevertheless, I accept the Crown prosecutor’s submission that this does not relieve me of the need to assess the danger he poses in the sentencing process, one of the factors in that process being the protection of the community. In the light of the psychiatric evidence, the most I can say is that his condition is amenable to an appropriate regime of treatment but that he would remain a danger to the community unless he accepted it and adhered to it.

76. As to the offender’s subjective case generally, I take into account his disturbed background and enduring mental illness which, no doubt, provide the context for his drug and alcohol abuse. Apart from the offences in 2010 to which I have referred, his criminal history is not significant. Any assessment of his prospects of rehabilitation must be guarded, but I note that he has the continuing support of his aunt and uncle.

77. Exceptionally, the offender pleaded guilty to murder in the Local Court. By doing so he abandoned any prospect of being found guilty of manslaughter rather than murder on the basis of the partial defence of substantial impairment. The Crown prosecutor argued that I should exercise my discretion to deny him any leniency on this account, but that exceptional course is not called for in this case.

78. Mr Krisenthal submitted that he is entitled to the full 25 per cent reduction of sentence for the utilitarian value of the plea. There is some incongruity in that approach, given that his plea of guilty and abandonment of any partial defence was consistent with the object of his criminal enterprise: the commission of a serious crime for which he would be readily identified as the perpetrator, and which would visit upon him a substantial prison term. Nevertheless, the reduction of a sentence sanctioned by the authorities is for the utilitarian value of the plea in the administration of criminal justice, regardless of the personal motive for which it was entered. The offender is entitled to an appropriate reduction of sentence for his timely plea of guilty.

79. Mr Krisenthal submitted that I should find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. I do not propose to do so. The sentence I must pass will be lengthy, and the application of the statutory proportion to it will produce a period of parole eligibility adequate to foster the offender’s rehabilitation. Moreover, a lesser non-parole period would be insufficient to reflect his criminality.

Sentence

82. Both counsel referred me to sentencing decisions at first instance and in the Court of Criminal Appeal in roughly comparable cases. A list of them appears on the coversheet of these reasons. To a greater or lesser extent they share some features with the present case, and they are perhaps useful in setting some broad parameters. However, in other respects each of them is markedly different from this case. Each of them, of course, turned on its own facts and no clear pattern of sentence which might inform my decision emerges from them.

83. Taking into account all the factors to which I have referred, I consider the appropriate starting point for sentence in this matter to be imprisonment of the order of 30 years. I shall reduce that to 23 years in recognition of the offender’s plea of guilty, a reduction of roughly 25 per cent. Applying the statutory proportion, I shall set a non-parole period, rounded off, of 17 ½ years. The sentence will date from the day of the offence and the offender’s arrest, 6 February 2017.

84. Thomas Dillan Stone, for the murder of Robert James Mitchell you are sentenced to a non-parole period of 17 years & 6 months, commencing on 6 February 2017 and expiring on 5 August 2034, and a balance of term of 5 years & 6 months, commencing on 6 August 2034 and expiring on 5 February 2040. You will be eligible for release on parole on 6 August 2034.

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Decision last updated: 04 March 2019