R v Thomas (No 2)

[2015] NSWSC 561

Supreme Court

New South Wales

Medium Neutral Citation:	R v Thomas (No 2) [2015] NSWSC 561
Hearing dates:	14 May 2015
Decision date:	14 May 2015
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Limiting term of 1 year 6 months
Catchwords:	CRIMINAL LAW – sentence – accused unfit to be tried – special hearing - recklessly causing grievous bodily harm –accused guilty on limited evidence available – where term of imprisonment would have been imposed – limiting term nominated – Mental Health (Forensic Provisions) Act s 23
Legislation Cited:	Crimes Act 1900 (NSW) s 35(2) Mental Health (Forensic Provisions) Act 1900 (NSW) ss 23, 24, 32, 52
Cases Cited:	R v Thomas [2015] NSWSC 537
Category:	Sentence
Parties:	Regina Michael Thomas
Representation:	Counsel: Mr P Lynch (Crown) Mr M Ierace SC (Offender)   Solicitors: Solicitor for Public Prosecutions Legal Aid NSW
File Number(s):	2013/30962

Judgment

1. R A HULME J: Michael Thomas, who is unfit to be tried, was found last week to have committed an offence of recklessly causing grievous bodily harm. That finding was made at a special hearing over which I presided without a jury and was based upon what the legislation calls "the limited evidence available". (That term is used in recognition of the fact that a person who is unfit to be tried is not able to participate in a special hearing to the same extent as an accused person can in a normal criminal trial.)

2. It is necessary for me now to indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried, I would have imposed a sentence of imprisonment: s 23(1)(a) of the Mental Health (Forensic Provisions) Act 1900 (NSW). The answer to that question is in the affirmative and that is common ground between the parties.

3. In that case, I am required to nominate what would be my best estimate of the sentence that would have been imposed if the special hearing had been a normal trial in which a person had been found guilty: s 23(1)(b).

4. In nominating that term I may take into account any period in which Mr Thomas has been held in custody. I have been informed that he has been in custody since he was arrested and charged on the evening of 31 January 2013; a period of about 2 years 3½ months.

5. As to the length of the term, I note that recklessly causing grievous bodily harm is an offence against s 35(2) of the Crimes Act 1900 (NSW) and there is a maximum penalty of imprisonment for 10 years.

6. The facts surrounding the commission of the offence are set out in the judgment I gave at the conclusion of the special hearing last week and need not be repeated: see R v Thomas [2015] NSWSC 537. I would assess the objective seriousness of the offence as being neither at the high nor low end of the range. The degree of force used to punch his mother was moderate but, having regard to her condition, the consequence was most severe, namely a subarachnoid haemorrhage. It was not something that Mr Thomas gave any prior thought to. I am satisfied that it was the product of a spontaneous outburst of anger in the context of him having been under the stress of working in a job he did not enjoy, an argument with his parents about having resigned from it, and his mother's deteriorating health over the preceding two months to the point where she did not have very long to live.

7. Relevant subjective circumstances of Mr Thomas are also to be found in that judgment. The most prominent of these are that he is 27 years old and has a moderate intellectual disability. The latter has the effect that he has an intellectual capacity less than 99.9 per cent of the general population. This level of functioning did not require him to be under any form of professional care and monitoring. He did receive assistance and mentoring in relation to employment. In fact, it was his resignation from a job he had, working as a kitchen hand, that led to the argument that preceded the assault upon his mother.

8. Prior to going into custody, Mr Thomas was living at home with his parents and younger brother. I understand that it is proposed that he will return to live with his father and brother at their Emu Plains home.

9. Mr Thomas' moral culpability is at a relatively low level for this offence. General deterrence and denunciation which are normally taken into account in sentencing have no relevance. In short, Mr Thomas is not an appropriate person to be denounced or made an example of.

10. I do not get any sense that Mr Thomas presents any particular danger to the community. He has a criminal record but it is confined to a matter of assault that was dealt with under the provisions of s 32 of the Mental Health (Forensic Provisions) Act (meaning that the charge was dismissed and he was discharged into the care of his mother.)

11. I have concluded that if this had been a normal trial I would have imposed a sentence of 1 year 6 months. Consequently, I am going to nominate a limiting term of 1 year 6 months and specify that it date from the day Mr Thomas went into custody, 31 January 2013.

12. Section 24 requires that upon nominating a limiting term the Court must refer the person to the Mental Health Review Tribunal and make an order with respect to the person's custody as is considered appropriate. However, the effect of the order I propose to make is that Mr Thomas will no longer be a forensic patient who is subject to the oversight of the Tribunal: s 52(2)(a). I think it would be appropriate nonetheless for the Registrar to send a formal notification to the Tribunal of the outcome of the proceedings.

Order

1   Nominate a limiting term of 1 year 6 months dating from 31 January 2013 and expiring on 30 July 2014.

2   Direct Mr Thomas' release forthwith.

3   Direct the Registrar to notify the Mental Health Review Tribunal of these orders.

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