R v Thompson (No 2) - [2022] NSWSC 1045

Supreme Court

New South Wales

Medium Neutral Citation: R v Thompson (No 2) [2022] NSWSC 1045
Hearing dates: 05 August 2022
Date of orders: 05 August 2022
Decision date: 05 August 2022
Jurisdiction: Common Law - Criminal
Before: Walton J
Decision:
See [9] and [10]

Catchwords:
CRIME – murder – elements of the offence of murder – defence of mental health impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 28 – Judge alone trial – special verdict – act proven but accused not criminally responsible – consideration of orders to be made under ss 33 and 34 – victim impact statement of family member received under Crimes (Sentencing Procedure) Act 1999 (NSW) s 30L – importance of victim impact statement – orders made including order for detention until release by due process of law

Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 29, 30, 33, 34, 78, 84, 109
Crimes (Sentencing Procedure) Act 1999 (NSW), s 30L
Cases Cited:
Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392
R v Siemek (No. 2) [2021] NSWSC 1293
R v Thompson (No 1) [2022] NSWSC 1044

Category: Sentence
Parties: Regina (Crown)
Harley Thompson (Accused)
Representation:
Counsel:
K Ratcliffe (Crown Prosecutor)
S Fraser (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2020/00224600

Judgment

This morning, the accused, Mr Harley Thompson, was found to have committed an act that led to the death of Mr Cameron Johnston without being criminally responsible for that act due to a mental health impairment within ss 4 and 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”): R v Thompson (No 1) [2022] NSWSC 1044. A special verdict of “act proven but not criminally responsible” was returned under s 30 of that Act.
As Johnson J observed in R v Siemek (No. 2) [2021] NSWSC 1293 at [3], since 2018, the law has allowed a victim impact statement to be placed before a court in circumstances where the former defence of mental illness or the present defence of mental health impairment under the Act has been made out. As a result of that significant reform, members of the family of Mr Johnston have a direct voice in these proceedings. The Court acknowledges receipt of the victim impact statement of Mr David Johnston, who is the brother of the deceased, and has regard to it in these proceedings pursuant to s 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW).
I express the condolences of the Court and the community to the family and friends of Mr Johnston for their loss and, in particular, Mr Johnston’s father, brother and son.
Section 33(1) of the Act provides for the Court, on the return of a special verdict of act proven but not criminally responsible, to make one or more of a number of specified orders. It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thompson (No 2)

Details

AGLC: R v Thompson (No 2) [2022] NSWSC 1045
Case: [2022] NSWSC 1045
Decision Date: 05 August 2022

CaseChat Overview and Summary

In the case of R v Thompson (No 2), the defendant was charged with murder, and the court had to determine whether the defendant was criminally responsible for the act, considering the defence of mental health impairment. The case was heard in a NSW Supreme Court judge alone trial, where a special verdict was rendered. The special verdict found that the defendant had committed the act, but due to mental health impairment, the defendant was not criminally responsible for the offence. The court was required to decide on orders to be made under sections 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and consider a victim impact statement under section 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The court considered the defendant's mental health impairment and its impact on their criminal responsibility. The court found that the defendant was not criminally responsible due to their mental health impairment, as defined under the Act. In addition, the court received a victim impact statement from a family member of the deceased, which played a significant role in the court's decision-making process. The court acknowledged the importance of the victim impact statement in understanding the consequences of the crime on the victim's family and in making orders under the Act.
After considering the evidence and the relevant legislation, the court made orders under sections 33 and 34 of the Act. The court ordered that the defendant be detained until released by due process of law. The court also considered the victim impact statement in making these orders, recognising the importance of acknowledging the impact of the crime on the victim's family. These orders reflect the court's consideration of both the defendant's mental health impairment and the impact of the crime on the victim's family.

Orders