Director of Public Prosecutions v Barta
[2018] VSC 681
•7 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 1054
| DPP |
| v |
| ATILA BARTA |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 November 2018 |
DATE OF JUDGMENT: | 7 November 2018 |
CASE MAY BE CITED AS: | DPP v Barta |
MEDIUM NEUTRAL CITATION: | [2018] VSC 681 |
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CRIMES MENTAL IMPAIRMENT – Defence of mental impairment – Agreement between parties the proposed evidence establishes the defence of mental impairment – Verdict of not guilty because of mental impairment – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23, 24, 41 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Hammill | Office of Public Prosecutions |
| For the Accused | Ms G Connelly | Victoria Legal Aid |
HER HONOUR:
Introduction
The accused has been indicted on five charges including: two charges of arson, being Charges 1 and 3 pursuant to ss 197(1) and 197(6) of the Crimes Act 1958 (Vic) (‘Crimes Act’) in respect of two residential properties that the accused owned jointly with the ANZ Bank; Charge 2 being a charge that he did intentionally cause damage to a Jeep Cherokee motor vehicle pursuant to s 197(1) Crimes Act; Charge 4 that he attempted to murder Samuel Windmill pursuant to s 321M of the Crimes Act and Charge 5 that he intentionally caused injury to Adewale Animasahun pursuant to s 18 of the Crimes Act. All of these charges arose out of events which took place between 30 October 2017 and 5 November 2017.
At the time of these offences the accused was suffering from schizophrenia or schizo-affective disorder.
The matter has proceeded as a consent mental impairment trial by judge alone pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘CMI Act’). A Crown Opening was tendered setting out the factual circumstances of the charges.[1] The defence of mental impairment must be established on the balance of probabilities under the CMI Act. Therefore, the court must be satisfied that, at the time of the offending, the accused was suffering from a mental impairment and that the commission of the offending was because the mental impairment affected him in such a way that he either did not know the nature and quality of his conduct or did not know that his conduct was wrong.
[1]Crown Exhibit 1.
Background of the accused
The accused was born on 10 April 1961 in Serbia and was aged 56 at the time of the offending. He was a single person living alone and receiving a disability support pension. He lived between three different rural properties in the Latrobe Valley region of Victoria. The accused had previously lived for many years with his mother but his mother suffered a stroke in 2015 and the accused’s brother intervened in her care, leading to a loss of contact between the accused and his mother at that time.
The accused was previously in receipt of depot injections of Risperidone Consta medication for schizophrenia, which was being managed by a local area mental health service in 2016, but it appears that he was discharged to the care of the local medical general practice in 2016 and became non-compliant with his anti-psychotic injections over the course of 2017. The last recorded injection was in January 2017.
Background to the offending
The accused was located at 4.50 am on 1 November 2017 by the Pakenham Police divisional van when he was seen driving his Nissan motor vehicle on Main Street, Pakenham. Upon being intercepted and searched it was found that there were three jerry cans containing petrol in the car and it was apparent to the police members that the accused needed to be assessed pursuant to the Mental Health Act 2014 due to his mental state.
He was conveyed to Casey Hospital where medical staff recorded that the accused was mentioning command hallucinations from God and that he was trying to kill three people. At that stage the accused was admitted as an involuntary mental health patient in a secure unit at Dandenong Hospital.
Offence of Arson at 12 Centre Road, Warragul on 30 October 2017
On this date the accused was involved in setting a small fire inside premises at 12 Centre Avenue, Warragul. The accused was the registered owner of this residential property but had recently sold it. However, ownership had not transferred and the property remained in the name of the accused and the ANZ Bank, to which the property was mortgaged. The fire was set by the accused at 2.30 pm by preparing a small pile of combustible material in a room inside the residence. Neighbours noticed smoke from the property and contacted 000.
The police and emergency services arrived but the accused had left the scene in his Nissan motor vehicle.
The damage to the Jeep Cherokee motor car on 20 October 2017
The accused then attended at 20 Butters Street, Morwell where he attacked a black Jeep Cherokee motor vehicle with a tomahawk, smashing the front headlights of the vehicle and causing significant damage. This was recorded on CCTV from a neighbouring property.
Arson at 61 Hourigan Road, Morwell on 31 October 2017
On the following day, being Tuesday 31 October 2017, the accused attended at 20 Butters Street, Morwell and set a small fire inside a room in that property. Again, nearby residents alerted emergency services. The accused departed the premises.
At 9.30 pm on 31 October the accused then set another fire at 61 Hourigan Road, Morwell. He was seen to leave the property in his Nissan motor vehicle before the fire took hold and neighbours contacted police. He was spoken to by police but gave an explanation that his brother had caused the fire.
Events in Smith Street, Warragul on 1 November 2017
At 12.50 am on 1 November 2017, the accused was driving his vehicle in Smith Street, Warragul when he noticed two men standing talking near a taxi. The accused deliberately drove his vehicle towards one of those men with the intention of killing him. The victim of that offence, Mr Samuel Windmill, was knocked down in the collision and later taken to Dandenong Hospital where he suffered a broken ankle and leg fracture requiring surgical correction, together with an injury to his right hand. He remained in hospital for several days and was wheelchair bound for eight weeks. The accused drove away from the collision without stopping or rendering assistance.
Police apprehension of the accused
Following police communications notifying the need to apprehend the accused he was picked up at 4.50 am that morning by the Pakenham Police divisional van and taken to Casey Hospital to be assessed under the Mental Health Act 2014.
After being made an involuntary patient at Casey Hospital the accused was subsequently transferred to the Dandenong Hospital.
The Assault on a nurse on 5 November 2017
On 5 November at Dandenong Hospital the accused asked a nurse, Mr Adewale Animasahun for a pen intending to make a will. He then attacked the nurse with the pen, stabbing the nurse in his face several times, causing minor injuries.
Police arrest
On 19 December 2017, upon discharge from the psychiatric ward of Dandenong Hospital and transfer to Latrobe Regional Hospital the accused was arrested and taken for police interview. However, he made no comment in response to all matters put to him.
Assessment and report of Dr Fiona Best
The accused was assessed, at the request of the defence, by Dr Fiona Best for 90 minutes on 18 May 2018 via video link to Port Phillip Prison. Dr Best provided a report to the defence dated 20 May 2018. This report was tendered on behalf of the accused in a hearing before me.[2]
[2]Defence Exhibit 4.
In preparing her report, Dr Best had access to the police brief and the hospital records from Monash Health (Dandenong Hospital) and Latrobe Regional Hospital as well as the Central Clinic Warragul’s file and a discharge summary from Latrobe Regional Hospital dated 19 December 2017. The discharge summary was tendered by the Defence and summarises the accused’s previous mental health history.[3]
[3]Defence Exhibit 2.
Dr Best opined that the accused was suffering from schizophrenia at the time of the offending and that on assessment on 18 May 2018 was appropriately diagnosed with schizophrenia, multiple episodes currently in partial remission (DSM-5), which was an accepted form of mental impairment.
Dr Best recorded that, ‘although there is no evidence that he did not know the nature or quality of his conduct was wrong, his active psychotic symptoms of grandiose, bizarre and religious delusions and auditory hallucinations at the time of the offences meant that he was unable to reason with any degree of sense and composure about the wrongfulness of his conduct.’
Dr Best noted that the accused had reported to her that he had ceased his anti-psychotic medication some months previously and he acknowledged that he was unwell. Dr Best noted that the medical file, relating to his admission to the Acute In-patient Psychiatric Unit immediately following the alleged offences, stated that the accused was floridly psychotic and required involuntary treatment under the Mental Health Act 2014 and that the accused reported that, at the time of the offending, he had heard the voice of God commanding him to drive his car into the taxi driver because he thought the taxi driver was a paedophile.
The accused also reported that he believed his neighbours were watching him when he was inside his house and on his toilet and that this belief motivated him to retaliate by damaging his neighbour’s car. Medical records noted that he also stated that he had burned his properties down because he believed there was a conspiracy between Centrelink, his local council, real estate agents and the ANZ Bank. Also that he stabbed the nurse at the in-patient psychiatric unit having formed the belief that the nurse wanted to have sex with him and was involved in sexual conduct.
Dr Best considered that the accused had a defence of mental impairment because there was a causal relationship between his mental illness and the offending.
Report and assessment of Dr Sam Pang and oral testimony
Following receipt of the report of Dr Best, the Crown obtained a psychiatric report from Dr Sam Pang,[4] Psychiatric Registrar, Community Forensic Mental Health Service, Forensicare.[5] Dr Prashant Pandurangi was the supervisor who co-signed the report.
[4]Crown Exhibit 2.
[5]Victorian Institute of Forensic Mental Health.
Dr Pang was also of the view that the accused had a defence of mental impairment and that the accused had an established diagnosis of schizophrenia. Dr Pang had assessed the accused for 80 minutes at Port Phillip Prison on 21 August 2018 under psychiatric supervision by Dr Pandurangi.
Dr Pang had access to the police hand-up brief, medical records of Monash Health and Latrobe Regional Hospital records as well as the medical record from the Central Clinic Warragul, along with other medical records and the report of Dr Fiona Best.
Dr Pang noted that the accused had a long history of involvement with medical and psychiatric services. At the time of his assessment the accused was being treated with the long acting injectable anti-psychotic medication Risperidone Consta at a dosage of 87.5mg every two weeks and that he had been having this injection since being placed in custody.
Dr Pang opined that, at the time of his assessment, the accused’s schizophrenia was partially treated but that the accused still had ongoing symptoms, including religious delusions, delusional misinterpretation and possible auditory hallucinations and that the accused possibly had negative symptoms of schizophrenia including restricted affect and a lack of interest in social engagement and relationships.
Dr Pang reviewed the accused’s personal history and noted that the accused reported that he had lived with his mother most of his life, but that when he was aged 35 his mother experienced a stroke; leaving her with a physical disability at which time the accused became her full time caregiver. He found this stressful.
The accused had been diagnosed with psychosis in 1996 and since then had experienced about six admissions to in-patient psychiatric units. He reported that in the past his psychotic symptoms had included hearing the voice of God and the voices of demons and that he had been treated with the anti-psychotic medication Olanzapine as well as the long acting injectable anti-psychotic medication Risperidone Consta.
The accused told Dr Pang that, although he had been treated, from time to time, on an involuntary basis, he had been receiving treatment in the community on a voluntary basis since 2016. The accused told Dr Pang that by 2015 his mother had dementia and one of his brother’s had accused him of neglect and applied to VCAT to prevent the accused having contact with his mother. The accused’s mother died in 2016 and he reported that he was not allowed to attend the funeral.
In late 2016 he was being treated as a voluntary patient being managed by doctors at the Central Clinic in Warragul.
The accused claimed to Dr Pang that in late 2016 one of the general practitioners gave approval to him ceasing the long acting injectable anti-psychotic medication that he had been having every two weeks. He therefore remained off the anti-psychotic medication for at least seven months prior to the index offences. The accused reported that over that period he believed multiple people were following him and conspiring against him. He had been praying in tongues for up to seven hours a day without eating or drinking and believed that he could call elections or make political leaders win. He became increasingly certain that taxi drivers were following him and was ‘praying, fighting the devil in prayer. Until 2.00 am, 3.00 am, 4.00 am, praying against the devil, against Satan, taking over Australia.’
The accused gave an account to Dr Pang regarding the events of 30 and 31 October 2017 that he did not know why he lit the fires but he started one of the fires using pages from the bible and there were listening devices in the house. He believed his neighbours were undertaking surveillance of him using secret devices.
Regarding the incident on 1 November 2017, he said he hit the taxi driver with his car believing Satan had influenced him and the Lord was compelling him because the taxi driver was a paedophile. Therefore he believed this was the right thing to do.
Regarding events of 5 November 2017 he attacked the nurse because he believed the nurse was going to rape him.
Dr Pang noted that, on mental state examination, the accused was mildly disorganised in his thoughts and somewhat tangential and endorsed ongoing religious and related delusions on certain topics discussed during the examination. He lacked insight regarding some of these delusions.
Dr Pang observed records from 21 November 2017 summarised that the accused had previously been subject to outpatient management by Monash Health but this changed to Latrobe Regional Hospital in 2014. He then became reluctant to engage and was discharged to be managed by his general practitioner in June 2015. Police brought the accused in for assessment in November 2017 at which stage he was diagnosed with a relapse of psychotic symptoms secondary to schizophrenia. Between 15 and 20 November 2017 a more aggressive regime of anti-psychotic medications was put in place.
Dr Pang was satisfied that the accused committed the offences during a psychotic episode, due to a relapse of his schizophrenic illness which occurred against a background of ceasing his anti-psychotic medication seven months earlier.
Dr Pang in oral evidence before me was unable to positively conclude whether the accused’s cessation of medication was his own decision or done with the sanction of a treating medical practitioner. It is not necessary for the court to reach a conclusion about this matter for the purposes of determining whether the accused has a defence of mental impairment to the charged offences.
Dr Pang also gave evidence that, regarding each of the offences, the accused was unable to reason with a moderate degree of sense and composure about whether the conduct he embarked on at the time of each of the offences was wrong. He therefore considered that the accused had a defence of mental impairment under s 20 of the CMI Act.
Having regard to the Crown Opening, Defence Response to Crown Opening,[6] the evidence of Dr Pang, the report of Dr Best, the medical records tendered by the defence[7] and the depositional materials, I am satisfied on the balance of probabilities that the evidence establishes the defence of mental impairment. I therefore direct that a verdict of ‘not guilty because of mental impairment‘ be recorded in respect of each charge on the indictment filed in this matter.
[6]Defence Exhibit 1.
[7]Defence Exhibits 2 and 3.
I declare that pursuant to s 23(a) of the CMI Act the accused be liable to supervision under Part 5 of the CMI Act.
I order that the accused be remanded in custody in a prison, being satisfied that there is no practicable alternative in the circumstances presently existing.
I order that a Certificate of Available Services be obtained and filed with the court under s 47 of the Act and I extend time for the obtaining of the certificate until the next mention of this matter on 25 January 2019.
I order that a report be obtained and filed with the court under s 41 of the Act from the appropriate person. I extend time for the preparation of such report until the next mention date on 25 January 2019.
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