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

1. 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.

2. 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).

3. 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.

4. 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 important to emphasise that the accused is not being sentenced or punished by the Court. Section 33 of the Act is directed to the protection of persons in the community, together with the welfare of the person who has committed the act which gives rise to the special verdict: Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 at [87]-[92] (Johnson J).

5. I am satisfied that the only appropriate order to be made in this case is one under s 33(1)(b) of the Act that Mr Thompson be detained in a place and manner that the Court thinks fit until released by due process of law. Counsel for the accused properly accepted this is the appropriate course. Mr Thompson’s actions in the context of a record of the history of escalating mental illness, the nature of the diagnoses of the accused, namely, a psychotic disorder in the nature of schizophrenia, his gradual ongoing treatment and his substance use disorder provide an ample basis to conclude no other order under s 33(1)(b) of the Act is appropriate in this case.

6. I note that s 34 of the Act requires the Court to refer Mr Thompson to the Mental Health Review Tribunal following a special verdict of act proven but not criminally responsible and where, as in this case, no order for unconditional release is to be made.

7. It is important that the community understands that the effect of the verdict which has been returned, and orders which the Court will make, is that Mr Thompson 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 Mr Thompson will not be released until the Tribunal is satisfied that the safety of any member of the public, or of Mr Thompson, will not be seriously endangered by his release: ss 29(d) and 84(2) of the Act.

8. 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, Mr Thompson 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.

ORDERS AND DIRECTIONS

9. I make the following orders:

1. Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Court orders that Harley Thompson be detained in a correctional facility, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

2. Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Court refers Harley Thompson to the Mental Health Review Tribunal.

10. I make the following directions:

1. The Registrar is to notify the Minister for Health and Minister for Mental Health, as soon as practicable, of the making of these orders.

2. The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation:

1. A copy of the Court’s reasons for verdict and for making these orders;

2. The transcript of the trial;

3. Copies of exhibits from the trial; and

4. A copy of the victim impact statement of Mr David Johnston.

3. The Registrar is directed to notify Justice Health and Forensic Mental Health Network, as soon as practicable, of the verdict and orders in this matter and to provide to Justice Health and Forensic Mental Health Network copies of the following documents:

1. A copy of the reasons of the Court for verdict and making these orders;

2. Copies of the reports of Dr Eagle and Dr Ellis and the supplementary report of Dr Eagle; and

3. The transcript of the trial insofar that it contains the concurrent expert oral evidence of Dr Ellis and Dr Eagle.

**********

Decision last updated: 05 August 2022