Director of Public Prosecutions [Director of Public Prosecutions] v Hosking, Clive

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No. 1613 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

CLIVE HOSKING

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JUDGE:	Hollingworth J
WHERE HELD:	Ballarat (trial), Melbourne (plea)
DATES OF HEARING:	16-19, 22-25 June 2009 (trial) 2 October 2009, 1 December 2009 (plea)
DATE OF SENTENCE:	11 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSC 549

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Criminal law - Sentencing – Murder – Stabbing of elderly mother in nursing home – Single stab to the chest - Victim died from complications six weeks later - Offender suffering from schizophrenia and intellectual disability - Verdins principles applicable – No predisposition to violence – No prior convictions - Moral culpability, need for specific and general deterrence reduced because of mental state - Imprisonment particularly onerous - Shorter than usual non-parole period justified - Sentence of 15 years’ imprisonment, with non- parole period of 10 years.

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms M Williams SC	Solicitor for Public Prosecutions
For the Accused	Mr D McKenzie	Victoria Legal Aid
HER HONOUR:

Clive Hosking, you have been found guilty by a jury of the murder of your mother, Judith Hosking.
The offence and its background
On 30 October 2006, you stabbed your mother once, in the chest, with a knife. She died of complications arising from that stab wound some six weeks later, on 15 December 2006.
Prior to that day, your relationship with your mother seemed to have been unremarkable. Mrs Hosking had been living in a nursing home since the early 2000s. You would visit her there from time to time. You would also have lunch with her, when she was taken on monthly shopping trips by a carer. Witnesses said that you appeared to get on well with her.
You have a history of mental illness. You were first diagnosed with schizophrenia in the early 1990s, suffering from auditory hallucinations and paranoia. Two days before the incident, you stopped taking your anti-psychotic medication, because you were feeling better. You also suffer from grossly impaired cognitive functions.
On 30 October 2006, you awoke feeling frustrated and “a bit wild” with your mother. You took a knife from home and drove from Warrnambool to the nursing home in Penshurst, to see your mother. Around 9:15 am, staff at the nursing home heard a loud male voice yelling or screaming from Mrs Hosking’s room and found you there with a knife standing over your mother, who was sitting in a chair. From time to time you would mutter to your mother in a fairly soft tone, but for much of the time you used a loud and aggressive tone. For the most part, witnesses near the scene could not understand what you were saying, describing your words as “jumbled” or you as “mumbling.” One witness heard you say “you have ruined my life” and “14 years”, although the context was not clear. You were clearly in an agitated state. When a doctor tried to calm you down, you waved the knife towards him and he left to activate emergency procedures and contact the police.
A police officer, Senior Constable Peter Hinchey, also tried to reason with you, but you continued to be loud and aggressive, and he too found it difficult to understand you. He did remember you saying “this goes back 30 years”, and you told him a couple of times to get rid of his gun and that you didn’t want anything. Mr Hinchey attempted to calm you down for about 15 to 20 minutes, but you were agitated the entire time. At one stage you sat down on the bed and put the knife down beside you, but then you suddenly got up and, with what he described as “a mad look” in your eye, you lurched at your mother, stabbing her once in the upper left chest. Witnesses heard a woman scream. Mrs Hosking had not said anything until then.
There was another elderly woman in the room, in the bed next to your mother’s bed; she did not speak during the episode.
Mr Hinchey and other police officers quickly entered the room and sprayed you with capsicum foam. As three or four officers wrestled with you to drop the knife and handcuff you, others took Mrs Hosking and the other woman out of the room. You were taken outside and washed as aftercare for the capsicum spray. You were found to be uninjured, and were compliant with police thereafter.
Mrs Hosking was taken to Hamilton Base Hospital. Staff at the nursing home had already placed an airtight dressing on her chest wound, to stop the bleeding, and a dressing on her finger which was also cut. She was conscious, with normal pulse and blood pressure and stable vital signs. She was placed in the intensive care unit at the hospital.
The stab wound caused a haemopneumothorax, the escape of blood and air into the cavity outside the lung, which required a catheter to drain out the blood. The stab wound also led to the partial collapse of your mother’s left lung. Although the stab wound was a serious injury, the consultant physician at the Hamilton Base Hospital believed there was a reasonable chance your mother would recover from the injury during the next week or two.
Your mother later developed bronchopneumonia and was placed on intravenous antibiotics, which in turn led to the development of a systematic fungal infection caused by the treatment. However, several days prior to her discharge back to the nursing home, she appeared to be in a reasonable condition. The main reason for transferring her back was that they had done everything they could at the hospital, and ongoing treatment could be continued at the home. The actual stab wound had largely healed, as had the scar tissue. The hope was still that she would recover to pre-admission status.
She was transferred back to the nursing home on either the 5th or 6th of December. On 12 December, your mother’s condition started to suddenly deteriorate and intramuscular antibiotics were commenced to address the pneumonia. When asked on 13 December whether she wished to be returned to the hospital, she refused, not wanting any more tests, investigations or aggressive treatments. Doctors at the hospital and the home concluded that her decision was reasonable and appropriate.
Your mother died at the nursing home on 15 December 2006, aged 79.
There was a dispute at trial as to the role which the stab wound that you inflicted played in your mother’s death. Dr Malcolm Dodd, a forensic pathologist from the Victorian Institute of Forensic Medicine, conducted an autopsy on Mrs Hosking on 18 December. He opined that the stab wound was the substantial and operating cause of death. On the other hand, Dr Byron Collins, a consultant forensic pathologist, gave evidence for the defence to the effect that the cause of death could not be definitely determined, and there was at least one other possible cause of death. In reaching a verdict of guilty, the jury must have been satisfied beyond reasonable doubt that the stab wound you inflicted on your mother was a substantial and operating cause of her death.
The jury must also have rejected the defence of mental impairment, namely, that your mental state was such that you were unable to reason about the wrongfulness of your actions. However, the fact that they rejected that defence does not mean that your mental illness and cognitive impairment did not play a significant role in your offending. Your mental condition is a significant factor that must be taken into account when sentencing you. Schizophrenia is a serious psychiatric illness, which falls squarely within the range of mental disorders and dysfunctions that make the principles outlined in Verdins[1] applicable. Indeed, the prosecution does not dispute that all of the Verdins principles are engaged in this case.
[1] R v Verdins (2007) 16 VR 269.
Seriousness of the offence
Murder is a very serious offence, involving as it does the taking of another person’s life. The maximum penalty for murder is life imprisonment.
The prosecution urged me to find that the stabbing was planned, that you had taken the knife from your house and driven to the nursing home, in an angry state of mind, intending to use it as a weapon.
It is true that you had taken the knife and driven to the nursing home. You were clearly agitated, yelling at your mother, for a period of time totalling about half an hour, holding the knife as you did so. You resisted attempts to calm you down. And, ultimately, you did stab your mother. You had not simply picked up a weapon lying at hand and spontaneously stabbed your mother. But it does not follow that the stabbing must have been premeditated.
Asked to explain your actions that day, you repeatedly told the police, and many of the health professionals who have seen you since, that you felt ‘a bit wild’. The police clearly assumed that ‘wild’ meant ‘angry’, but it is not clear to me, given your mental illness and cognitive impairment, that that is necessarily the case. Indeed, Dr Danny Sullivan, a psychiatrist who gave evidence on your behalf at trial, described your frequent use of the expression ‘wild’ (about 30 times in the record of interview alone) as ‘perseveration’, which is itself a manifestation of your mental illness.
You acknowledged to police that you might “do something to your mother”, but denied knowing that clearly. Another time, you said that you did not know what you were doing, that you might have had the knife “for something else”. You told one of the health professionals that you first thought of using the knife when you were talking to her and she “was talking bullshit.”
Since the stabbing, you have made comments to various people that may have demonstrated some animus towards your mother for “past hurts” or “past history”, and have described her as “a bitch”. At the same time, as some of the mental health professionals have noted, it is not clear whether your feelings towards your mother were based on real events or delusional beliefs. As mentioned earlier, people who had seen you with your mother on past occasions thought you got on well together.
Your mother, who was only able to be questioned briefly as to the reason for your assault upon her, said that it was because you didn’t want her to go shopping anymore. But your mother’s carer on the shopping trips gave evidence that you never voiced any concern about your mother spending too much time shopping.
Dr Danny Sullivan opined that your profound mental disorder, particularly the negative symptoms of your schizophrenia, impaired your ability to think sensibly. He stated that “Any reasonable person would not have gone off their medication two days before on a whim.”
Notwithstanding that the jury rejected a defence of mental impairment, it still remains unclear what your intentions were for your actions that day and whether they were based in sound reasoning.
The jury verdict necessarily reflects a finding that, at the time you stabbed your mother, you intended to kill her or cause her really serious injury. It involves no necessary finding as to your state of mind before that time. Given the state of the evidence, including as to your mental illness and cognitive abilities, I am not satisfied beyond reasonable doubt that the offence involved any degree of premeditation or planning.
Personal circumstances
You were born in Warrnambool in 1953 and are now 56. You grew up in Hawkesdale. You left school at the age of 15, after repeating year 8.
You lived with your parents until your early 40s, before living by yourself. You related well with your father, who died in 1993 from a heart attack. You have an older brother, although you have not spoken with him for many years.
After leaving school you worked in wool sheds as a roustabout for three years, and then as a truck driver, locally and interstate, until 1998. You were dismissed from that job, apparently because you were unreliable. You had few friends at school or in the community, and you told Dr Sullivan that work people had treated you “mean.” You have never been in an intimate relationship.
Although you drank regularly, particularly in your youth, you have had no significant problems with alcohol. In your 20s and 30s, while working as a truck driver, you regularly took amphetamine tablets, apparently without any problems. It seems that you had ceased using amphetamines before you were diagnosed with schizophrenia. You have no other history of illicit drug usage.
There is a history of psychiatric illness in your family. Your mother had been diagnosed with schizophrenia, an illness she apparently had most of her life.
Your own history of mental health problems began in the early 1990s, when you were admitted into an acute psychiatric unit at a psychiatric hospital, diagnosed with schizophrenia.
In December 1995, you required a two week involuntary patient admission. You presented with inappropriate and threatening behaviour, were thought-disordered and exhibited paranoid ideation. Although showing a good response to medication, there remained enduring negative symptoms such as amotivation, ambivalence and social deficits, requiring the need for electroconvulsive therapy (ECT).
You were case managed in the community from December 1995 to September 2001, when your file was closed because your behavioural problems and psychotic and mood symptoms had resolved, and your medication was going well.
However in May 2002, you were referred back to the health service because of catatonic symptoms and neglect of personal care. This led to a further admission for 20 days, 17 of them on an involuntary basis; during that time, you were given further ECT treatment. You were placed on a high dose of 9 mg of risperidone, more than double the standard dose for that antipsychotic medication. There seems to have been further hospital admission in 2004.
You were then case managed in the community. Ms Cassie McDougall was your case worker, from January 2006 until the time of the incident. You were seen on a fortnightly basis at your home or community centre, with reviews every three months. Ms McDougall found you respectful, pleasant, cooperative and compliant with your medication; she did not see you exhibit any aggressive behaviour in her presence.
Although Ms McDougall had observed no active psychotic symptoms in the nine months before the incident, she noted that you still experienced the need to flee the environment and return home if you heard someone coughing, because of a past delusion that if people were coughing in public, this indicated that they were withholding information from you.
In late September 2006, Ms McDougall noted that you were exhibiting early warning signs of a relapse, but you were reviewed by the consultant psychiatrist and no change was made to your management.
At the time of the incident, you had been living for about five years with another person in an Office of Housing house in Warrnambool. You had been independent in your daily activities and managed your own finances. You received a disability support pension and were in contact with psychiatric services and non-government organisations.
Since the offence, you have been seen by a number of mental health experts.
Dr Danny Sullivan, consultant forensic psychiatrist, gave evidence at your trial and prepared a further report for sentencing purposes. According to Dr Sullivan, you have severe, chronic schizophrenia, involving positive symptoms (such as delusions and hallucinations), negative symptoms (such as diminished self-care, poverty of thought and cognitive and social impairment) and past catatonic symptoms. At the times when he has seen you, you have demonstrated profound negative or deficit symptoms, with some residual positive symptoms.
Frontal lobe or executive dysfunction is related to the negative symptoms of schizophrenia. The frontal lobe of the brain is used for higher or executive functions, including judgment, planning and organisation. Dr Sullivan noted that you have obvious and significant cognitive impairment, particularly of executive function. You also perseverate (meaning you persevere with a particular speech pattern or word, even if it is not the appropriate response to a question, because of frontal lobe dysfunction), lack initiation and motivation and are limited in insight. He regarded your cognitive impairment as related to your schizophrenia, at the severe end of the spectrum. He suggested further investigation of your cognitive deficiencies.
Dr Sullivan noted that you have been prescribed an antidepressant whilst in prison, and that you have reported to him some symptoms of a depressive syndrome. However, he says you are so cognitively impaired that it is difficult to explore this further with you.
Mr James Drury, clinical neuropsychologist, performed a neuropsychological assessment in July 2009 for sentencing purposes. He described your speech as slow and difficult to understand. You had a fixed, expressionless gaze. You did not offer any spontaneous conversation and your comments were blunt. Your speed of information processing was slow, and you have limited attention and concentration. Memory and new learning skills are negligible. You have the reading ability of an average seven year old. Testing showed you were performing the tasks to the best of your ability. He concluded that you have a full scale IQ in the extremely low range (meaning 98% of your age group would perform better on the same set of tasks). This level of disability is consistent with an intellectual disability.
Mr Drury also noted that you seem to have very limited insight into the nature and extent of your condition, as indicated by statements you made to him in which you denied difficulties with memory and speech, when you clearly have profound deficiencies in both areas.
Dr Bell saw you on 24 November 2009, for the purpose of assessing your suitability for a hospital security order. His report is generally consistent with the assessments of Dr Sullivan and Mr Drury. However, he noted that you had recently been experiencing occasional auditory hallucinations and a minor degree of heightened self-reference (when you hear other people coughing). As with Dr Sullivan and Mr Drury, he observed that you demonstrate significant signs of parkinsonism (including involuntary tremors and shaking), that can reasonably be attributed to the effects of your antipsychotic medication, the dosage of which has recently been reduced.
Although Dr Bell agreed with Dr Sullivan that you have a mental illness which requires treatment, and which would ideally be treated at Thomas Embling Hospital, unfortunately, there are more acutely ill patients than you who require the limited number of places at the hospital. He was therefore unable to provide the necessary certificate under s 93A of the Sentencing Act, without which the court is unable to make a hospital security order.
Application of Verdins principles
The prosecution accepts that your moral culpability is reduced by reason of your mental state at the time of the offending. That means that denunciation is less likely to be a relevant sentencing objective.
As far as remorse is concerned, the probationary psychologist, Amity Devereux, who saw you a few hours after the incident, said that you displayed some level of remorse, however she did not recall what made her note that. After initially struggling with the police, you fully cooperated with them once you had been subdued and arrested. Your mental illness and intellectual disability otherwise make it difficult to assess the level of remorse you have for your actions.
As far as specific deterrence is concerned, I note that you have no prior convictions and no history of violence. Your actions on the day in question were out of the ordinary and unexpected, both by staff who had seen you on earlier visits to your mother and the medical professionals who have seen you since the offence. Your actions seem have been directed towards your mother, because of some perceived ill- treatment by her in the past. Whether or not that perception was founded in reality, it seems to have been specifically directed towards her. There is no suggestion that you harbour similar grievances (whether real or delusional) towards others.

I also agree with the opinion of Mr Drury that the deterrent value in your sentence will be of negligible consequence given your lack of insight into your condition.
The prosecution accepts that specific deterrence should be given little weight in this case.
The prosecution also does not suggest that you pose an ongoing risk to the community, such that protection of the community should be of particular importance in sentencing you.
As far as general deterrence is concerned, the prosecution accepts this is not a case in which general deterrence has a substantial part to play, because of the effect of your mental condition upon your mental capacity, both at the time of offending and now.
There is also no dispute that your psychiatric illness and intellectual disability mean that you will find prison significantly more onerous than a prisoner in normal health. You are likely to be socially isolated, due to your poor social and communication skills and your inability to interact with others in a socially appropriate way. You have had no friends or family visitors in the almost three years in which you have been in prison, and there is no reason to believe that might change. Due to your cognitive impairment, you are unable to participate in programs or work in the prison environment. There is also some concern that your unusual behaviour and problems with self-care may make you more vulnerable and a potential target for maltreatment by other prisoners.
Sentencing you is not an easy task. Notwithstanding the significant and ongoing effects of your mental illness and intellectual disability, it remains the fact that your actions resulted in the death of a vulnerable and elderly person. Although your basic care needs can be met in prison, the prosecution did not dispute that a hospital security order would be an appropriate and humane disposition. Unfortunately, that option is not open to the court, due to the lack of places.
It seems likely that when you are released from prison, you will need to live in some sort of supported accommodation and under the continued supervision of mental health services, probably for the rest of your life. Mr Drury was somewhat pessimistic about your prospects for rehabilitation, because of your cognitive deficits. However, Dr Bell suggests that you would benefit from a prolonged period of intensive psychosocial rehabilitation that would address your psychological and social disabilities in terms of day to day self care, social skills and activities of daily living so as to would optimise your quality of life and your prospects of successful community reintegration upon release. Dr Sullivan seems to support that suggestion. The counselling and rehabilitation programs available in prison are more limited than those available at Thomas Embling Hospital or outside of the custodial environment.
I propose to order a shorter period before you will be eligible for parole than might otherwise be thought appropriate, to enable you to participate in appropriate counselling and rehabilitation programs, under the supervision of the Adult Parole Board (with support from appropriate mental health care providers), with a view to optimising your eventual reintegration into the community. A shorter period may also reduce any risk of further decline in your mental health through your remaining in the prison environment.
I sentence you to 15 years’ imprisonment. I order that the period before which you will become eligible for parole is 10 years.
I declare that the period to be reckoned as already served under the sentence is 1,139 days, inclusive of today’s date, and I direct that there be noted in the court’s records the fact that the declaration has been made and its details.

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[2009] VSC 549

11 December 2009