Director of Public Prosecutions v Brook (a pseudonym)
[2019] VSC 566
•22 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0260
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JANE BROOK (A pseudonym) |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 April 2019, 23 July 2019, 22 August 2019 |
DATE OF RULING: | 22 August 2019 |
CASE MAY BE CITED AS: | DPP v Brook (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 566 |
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CRIMINAL LAW – Attempted murder – Conduct endangering life - Consent mental impairment – Accused found not guilty by reason of mental impairment – Non-custodial supervision order made – Nominal term of 25 years – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 20, 21, 26, 28, 41, 47 and 75
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K Armstrong | Solicitor for Public Prosecutions |
| For Ms Brook | Mr A Halphen | Lethbridges |
HER HONOUR:
Jane Brook was charged with the attempted murder of her ex-husband, David Heath (a pseudonym), and conduct endangering the life of her then 11 year old son, in May 2018.
Ms Brook and Mr Heath were married in 1996 and divorced in 2016. In 2017, Ms Brook was diagnosed with stage 3 breast cancer. In December 2017, Mr Heath returned to their former home to assist Ms Brook during her treatment, and to look after their son. Ms Brook and Mr Heath remained separated, and slept in separate bedrooms.
Ms Brook first reported symptoms of anxiety and depression shortly after she was diagnosed with breast cancer. She began experiencing suicidal ideations, and concerns about her son’s future and what would happen to him if she died.
Shortly after midnight on the night of the offending, she left her bedroom and went downstairs. She filled a cup with methylated spirits from a bottle in the laundry. She returned to her bedroom with the cup.
Around 5:30am, she wrapped toilet paper around the ends of bamboo sticks she had taken from downstairs a day earlier, dripped the toilet paper in the methylated spirits, and set it alight using a lighter. She took the lit sticks and cup of methylated spirits into Mr Heath’s bedroom. She poured the methylated spirits onto Mr Heath’s face and bedspread. She then dropped the lit sticks onto the bedspread.
Mr Heath woke to find his bed and clothing on fire. Ms Brook was standing next to the bed, spraying him with liquid. He ran out of the room and removed his lit clothing, before going downstairs.
Ms Brook attempted to douse the fire in the bedroom using water from the bathroom. She called 000 and requested the Fire Brigade and an ambulance.
Their son was woken by the smoke alarm in the house. He heard his parents yelling and saw a pile of burnt clothing outside his bedroom. Ms Brook told him to go outside.
Mr Heath was taken to the Alfred Hospital by ambulance, where he was placed in an induced coma due to his injuries. He remained in an induced coma for 20 days. He suffered burns to 65% of his body, 55% of which were deep dermal.
Ms Brook and her son were taken to the Austin Hospital by ambulance and treated for smoke inhalation.
Ms Brook was arrested and taken to the Melbourne West Police Station. She was deemed fit for an interview, during which she admitted to lighting the fire. She told the police she was having dark thoughts about suicide and killing, she had attempted suicide, and she had intended to kill her ex-husband, her son, and herself, but once her ex-husband woke screaming it had shocked her back to reality.
The defence did not dispute that Ms Brook had performed the acts alleged by the prosecution, but said that she was mentally impaired at the time of offending.
On 1 April 2019, a hearing was held to determine the issue of mental impairment. Because both the prosecution and the defence agreed that the expert evidence established a defence of mental impairment, s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) allowed the evidence to be heard by a judge alone.
I was provided with a report from Dr Gideon Dubow (a psychiatrist engaged by the prosecution) dated 18 December 2018, and a report from Associate Professor Andrew Carroll (a psychiatrist engaged by the defence) dated 28 September 2018. The expert evidence is as follows.
Ms Brook is now 46 years old. She has no reported psychiatric history or history of alcohol or drug abuse. She first reported symptoms of anxiety and depression shortly after she was diagnosed with breast cancer. Her symptoms increased and she was prescribed an anti-psychotic which also acts as a tranquiliser, but ceased taking it due to side effects.
She began chemotherapy treatment for her breast cancer in early 2018.
From February 2018 onwards, she began to have suicidal ideations and believed that it would be better if she, her son, and ex-husband died together.
In April and May 2018, Ms Brook’s phone records indicate she conducted internet searches for information on suicide, sleeping tablets, methylated spirits, painless deaths, the law on suicide in Australia, and the laws on adoption.
She made multiple attempts to commit suicide. She had contact with various psychologists and mental health programs for short periods, and was treated with antidepressants and diazepam for anxiety. She only took the prescribed medications for short periods of time.
On the day before the offence, she conducted internet searches relating to suicide, strangulation, suffocation, hanging, burning (self-immolation), fire and fire-related deaths, and articles on family murders.
Both psychiatrists were of the opinion that Ms Brook was suffering from a Severe Major Depressive Episode at the time of the offence. Associate Professor Carroll also considered her to have developed psychotic features, including guilt of delusional intensity and a preoccupation with a sense of punishment by God, from February to July 2018.
The psychiatrists believed that her emotional state convinced her that her situation was hopeless and suicide was inevitable, and that it was in her son’s best interests, if she were not able to care for him, to take his life as well. While she was later able to comprehend her behaviour was wrong, at the time of the offence she did not know her conduct was wrong, and she was not able to reason with a moderate degree of sense and composure about her conduct.
While remanded at the Dame Phyllis Frost Centre, Ms Brook underwent further psychological assessment, and was put on anti-depressant and anti-psychotic medication. She was considered to have substantially recovered by late 2018.
Mr Heath has provided the court with two victim impact statements, in which he sets out the physical, social, and financial burden the offending has had on him and his son. He also stated he did not want Ms Brook to be punished; rather, he wants her to receive the support and assistance she requires to deal with her mental health problems, so as not to be a danger to herself or others.
Ms Brook’s son has also provided a victim impact statement in which he described his close relationship with his mother prior to her breast cancer and the significant impact it, and her mental health problems, had on him. He described his confusion and trauma over the offending conduct, and his subsequent separation from his family. He wants his mother to come home. He has demonstrated a remarkably mature understanding of the nature and effects of his mother’s mental health issues.
At the conclusion of the hearing on 1 April 2019, I was satisfied that the evidence established the defence of mental impairment pursuant to s 20(1)(b) of the Act; that Ms Brook was suffering from a mental impairment at the time of committing the offence, the effect of which was that she could not reason with a moderate degree of sense and composure about whether her conduct, as perceived by reasonable people, was wrong.
I directed that a verdict of not guilty because of mental impairment be recorded, and declared Ms Brook liable to supervision pursuant to Part 5 of the Act. Ms Brook was remanded in custody in prison, pending the preparation of a further report that is required by s 41(1) of the Act. The proceeding was listed for a further hearing on 23 July 2019.
On 23 July 2019, a further hearing was held. A s 41 report had been provided by Dr Kate Roberts of the Victorian Institute of Forensic Mental Health (‘Forensicare’) on 5 July 2019; however, it indicated that further information was needed before a final report could be provided. The report detailed the treatment and improvement in Ms Brook’s condition while in custody in prison, as already described. It noted that she had low historical and clinical risk factors for future violence, subject to the potential risk of her symptoms returning if Ms Brook did not adhere to her medication regime in combination with further stressors.
Dr Roberts noted that Ms Brook, subject to her potential community transition, was likely to be suitable for a non-custodial supervision order (‘NSCO’). The proposal was for Ms Brook to live in a private rental unit for the short-to-medium term and be referred to:
(a) Eastern Health for community-based support;
(b) ACSO’s ReStart program for post-release support; and
(c) Community Integration Program for up to 12 weeks to connect her to community mental health support.
However, the details of the proposed arrangements and support structures should Ms Brook be placed on a NCSO, as required by s 41(1)(c) of the Act, had yet to be sufficiently worked out at that stage. The court was also not able to make a supervision order, as set out in s 26(3) of the Act, because a certificate of available services had not been provided under s 47 of the Act.
Ms Brook continued to be remanded in custody in prison pending the updated report and certificate, and the matter was adjourned to 22 August 2019.
An updated s 41 report, dated 19 August 2019, has been provided by Dr Ria Zergiotis from Forensicare. Dr Zergiotis reiterated the recommendation for a NCSO. She reports that Ms Brook has been largely compliant with her medication and treatment while in custody, and intends to remain compliant if she is released. Ms Brook reported her mood has been stable for the last three to four months, with some brief periods of lowered mood. Ms Brook has been attending fortnightly psychological treatment sessions through Correct Care Australasia.
Ms Brook currently works six days a week within the Dame Phyllis Frost Centre, assisting at the café in the visitors’ centre and the kitchen of the staff cafeteria. She has had visits from close friends and her church pastor. Her ex-husband has an intervention order which prevents her approaching within 200 metres of him, though she has been able to speak to him on the phone. She is allowed supervised contact with her son, who remains primarily in the care of her ex-husband.
Dr Zergiotis reported Ms Brook’s risk of violence over the next six months is low while in custody, and moderate in the community during her transition. If Ms Brook became non-compliant with medication, ceased treatment, and experienced sustained psychosocial stressors, she would be at a high risk of relapse. However, Ms Brook now understands the need to keep taking her medication.
It has been confirmed that Ms Brook, if released from custody, will live with a friend within the catchment of the Outer East Area Mental Health Services. The proposed treatment to be provided to Ms Brook in the community is:
(a) Psychiatric treatment by the Outer East Area Mental Health Services at the Chandler House Community Mental Health Clinic (‘the clinic’). The clinic has accepted her as a prospective patient;
(b) Fortnightly contact with a case manager at the clinic;
(c) Reviews by a psychiatrist at the clinic at least every two to three months, or more frequently as required;
(d) Reviews by a Forensicare psychiatrist or psychiatric registrar every three months at the Community Forensic Mental Health Service, for at least the first year, reducing to annually as required;
(e) Reports by the clinic to Forensicare every three months on Ms Brook’s progress; and
(f) A case conference with her treating team four to six weeks after release from custody is also recommended.
Her treating team at the clinic will be responsible for her treatment and a crisis management plan, if required; while Forensicare will provide a supervisory role and assist Ms Brook’s treating team.
Dr Zergiotis has recommended specific conditions for Ms Brook’s release. The DPP accepts that they are reasonable conditions. I have also accepted and adopted them into my orders. They include remaining under supervision, complying with treatment, and not leaving the State of Victoria without permission.
Ms Brook has also been referred to the Australian Community Support Organisation’s ReStart Program, however, details of this referral still need to be finalised.
Ms Brook advised Dr Zergiotis that she continues to receive support from her church pastor, who is going to assist in organising counselling for her, separate to what would be required under a NCSO. She has attended the church for the past 14 years and plans to volunteer there if released from custody.
A s 47 certificate of available services has been provided by Forensicare, dated 20 August 2019.
Both parties agreed that, in the circumstances, an NCSO would be the appropriate outcome. The Act requires that, in the case of attempted murder, the nominal term of such a supervision order be 25 years, as the maximum term of imprisonment available for that offence. In the case of conduct endangering life, the nominal term of such a supervision order is 10 years, being the maximum term of imprisonment available for that offence. Section 28(2) of the Act provides that when a person is found to have committed more than one offence, and is not guilty because of mental impairment for more than one offence, the nominal term is calculated by reference to the offence that carries the longest maximum term of imprisonment. Accordingly, the nominal term for Ms Brook will be 25 years.
I will order that:
(a) A non-custodial supervision order is made pursuant to s 26(2)(b) of the Act.
(b) Pursuant to s 28 of the Act, the nominal term of the supervision order is 25 years from 23 May 2018, which includes the declared period of 456 days (excluding today), during which Ms Brook has been in custody.
(c) Ms Brook be under the supervision of the Authorised Psychiatrist of the Victoria Institute of Forensic Mental Health (‘Authorised Psychiatrist’) or their delegate.
(d) Ms Brook reside in a location known and approved by the Authorised Psychiatrist or their delegate.
(e) Ms Brook abide by the lawful directions of the Authorised Psychiatrist or their delegate.
(f) Ms Brook comply with treatment, testing, and attend appointments as directed by the Authorised Psychiatrist or their delegate.
(g) Ms Brook not leave the State of Victoria without written permission of the Authorised Psychiatrist or their delegate.
(h) The matter be brought back to court for review no later than 22 August 2021.
(i) Pursuant to s 75 of the Act, until 22 August 2021 or further order, no person shall publish or cause to be published or broadcast by means of radio, television or other means, any matter which might directly or indirectly enable identification of Ms Brook, her ex-husband or their son.
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