Jomaa v R [2019] NSWCCA 98

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jomaa v R [2019] NSWCCA 98 Hearing dates: 10 May 2019 Decision date: 20 May 2019 Before: Payne JA at [1]; Harrison J at [2]; R A Hulme J at [3] Decision: 1. Leave to appeal granted and appeal allowed. 2. Quash the limiting terms imposed in the District Court on 28 March 2018. 3. Nominate the following limiting terms: (a) Count 1: a limiting term of 12 months dating from 2 February 2016. (b) Count 2: a limiting term of 2 years dating from 2 February 2016. (c) Count 3: a limiting term of 2 years dating from 2 February 2017. (d) Count 4: a limiting term of 2 years dating from 2 February 2018. (e) Count 6: a limiting term of 3 years dating from 2 February 2016. 4. Confirm the referral of the applicant to the Mental Health Review Tribunal made by the District Court on 28 March 2018. Catchwords: CRIME – appeals – Mental Health (Forensic Provisions) Act 1990 (NSW) – appeal against nominated limiting terms – drug supply offences and direct activities of criminal group offence – applicant suffered stroke after arrest – Mental Health Review Tribunal assessed applicant as unfit to be tried – no error in finding applicant an inappropriate medium for general deterrence – error in taking into account specific deterrence – no likelihood of applicant reoffending due to mental condition – appeal allowed – reapplication of totality principle – lower total effective limiting term nominated – referral to Mental Health Review Tribunal confirmed Legislation Cited: Crimes Act 1900 (NSW), s 93T(1A) Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A Criminal Appeal Act 1912 (NSW), s 6A Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1) Mental Health (Forensic Provisions) Act 1990 (NSW), ss 23, 23(1)(a), 23(1)(b), 24, 44, 46, Pt 2 Cases Cited: Aslan v R [2014] NSWCCA 114 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Anderson [1981] VR 155 R v Chong [2012] NSWSC 1309 R v Engert (1995) 84 A Crim R 67 R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep) R v Mooney (Court of Appeal (Vic), 21 June 1978, unrep) R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 Category: Principal judgment Parties: Elias Jomaa (Applicant) Regina (Respondent) Representation: Counsel: Ms S Kluss (Applicant) Mr G Newton (Crown)