Director of Public Prosecutions v Brown
[2023] VCC 2081
•13 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
GENERAL LISTCR-22-00384
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN BROWN |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 November 2023 |
DATE OF SENTENCE: | 13 November 2023 |
CASE MAY BE CITED AS: | DPP v Brown |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2081 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing death. Accused unfit to be tried. Accused found to have committed the offence.
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA)
Cases Cited:NOM v DPP [2012] VSCA 198.
Sentence: Unconditional release under s18(4)(b) of CMIA.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Miss M. Mahady | Ms S. Wilson-Short Ms M. Kiapekos Office of Public Prosecutions |
For the Accused | Mr P. Smallwood | Mr C. Yang Paul Vale Pty Criminal Law |
HIS HONOUR:
Introduction
1This case is an utter tragedy.
2Kevin Brown was found to be unfit to stand trial on the charge of dangerous driving causing the death of Matthew De Thomasis on 8 November 2020. Mr Brown was then 80, nearing the end of his life and in all probability beginning to experience real cognitive decline. Mr De Thomasis was just 19 and had yet to commence his life, which offered so much promise.
3Mr Brown has frontal variant Alzheimer's dementia. He was not fit to be tried under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('CMIA', or 'the Act') – a decision which was reached by agreement and based on the unanimous expert opinions of eminently qualified mental health professionals.
4A determination of his inability to be tried by conventional means was heard before me on 6 March 2023. I determined, based on the expert evidence before me, he would never be fit to be tried.
5On 7 March 2023, a jury was empanelled for the purposes of determining if he committed the offence or not, returned a verdict that he did in fact commit the offence of dangerous driving causing the death of Mr De Thomasis.
6I ordered the necessary reports and certificates under the CMIA to determine whether or not Mr Brown ought to be liable to supervision.
7Having recently reviewed those reports and heard the unanimous view of the parties in this case, I am going to order that he be released unconditionally.
8That order requires explanation so that all of those who have a clear interest in this matter and its outcome understand how and why the decision is arrived at.
The Offending
9On 8 November 2020 at about 7 pm, Mr Brown drove his car through a red light in Lalor. Contrary to the conditions of his driving licence, he was not wearing glasses. It was a dry day, the visibility was good (perhaps apart from an amount of sun glare), there was little traffic nearby and the traffic lights were clearly visible.
10Matthew De Thomasis and his twin sister were crossing at a pedestrian crossing that was controlled by the traffic lights I have just mentioned. Matthew was struck and killed by Mr Brown's car. His sister somehow narrowly missed being hit.
11Mr Brown remained at the scene and was questioned by police. He was licensed by VicRoads. He had not been driving at excessive speed, he had not been drinking nor taking any drugs. He was not fatigued or distracted by a phone or the like. There was nothing about his car that caused or contributed to this fatality.
12It was Mr Brown's driving, by failing to pay proper attention to the road before him, not wearing glasses as he ought to, and that was what caused this tragedy.
Case History and Diagnosis
13A year after the collision, in November 2021, he was charged with various offences relating to his driving that day after the fatal collision.
14On 15 March 2022, he was committed for trial in the Magistrates' Court.
15On 7 September 2022, his case was listed for a plea hearing before me, but in the days prior to that hearing, his legal representatives were provided with letters authored by geriatrician Dr Louise Cunningham. Those letters referred to him as having a diagnosis of probable frontal variant Alzheimer's dementia.
16This is a cruel disease that is often associated with behavioural symptoms: mainly apathy, irritability, and agitation, followed by memory decline. Its sufferers, like Mr Brown, are often in denial that there is anything wrong with them, and it seems that although he was living alone at home at the time of the offending, his level of self-care and self-awareness were in real decline, sometimes placing himself in danger because of his obliviousness to his surroundings.
17The reports of Dr Cunningham disclosed that a real and substantial question as to Mr Brown's fitness to stand trial had arisen.[1]
[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s9.
18On 15 October 2022, by this time, Mr Brown was aged 82- he was assessed by clinical neuropsychologist Dr Sara Fratti on behalf of the accused. Dr Fratti concluded[2] that because of cognitive deficits, consistent with his dementia diagnosis, he was unfit to stand trial, as he was both unable to follow the course of a trial and unable to give instructions to his lawyers.
[2] Exhibit 2 (CMIA Investigation)- Report of Dr Sara Fratti dated 2 November 2022.
19Dr Fratti noted at [65]:
Taken together, Mr Brown's level of cognitive deficits on assessment, impaired insight and evidence of organic brain changes on neuroradiological investigation are consistent with his diagnosis of dementia. The onset of this progressive neurodegenerative condition is insidious and develops over many months or years. Mr Brown was formally diagnosed with dementia 12 months after the fatal accident; however, it is likely that his symptoms and organic brain changes had been present way before his diagnosis and likely present at the time of his driving accident. In a similar way, his significant visual deficits were present for a long time, as documented by medical records.
20It is important that everyone here understand that during his time with Dr Fratti, he spoke of his constant rumination about the offending and exhibited unfakeable, genuine remorse.
21Dr Fratti also concluded that his cognitive function was unlikely to ever recover, and he would not become fit within 12 months. He will never improve. He will never get better. He will be in a state of permanent decline until he dies.
22On 11 November 2022, the court reserved the question of his fitness to stand trial.
23On 25 November 2022, Mr Brown, at the age of 83, was assessed by senior clinical neuropsychologist and forensic psychologist Dr Amanda Nielsen. This was on behalf of the Crown.
24Dr Nielsen noted that Mr Brown's cognitive abilities were in decline for years, but this decline accelerated and worsened over the preceding 12 months.[3] She opined that he was unfit to stand trial and would not likely become fit within 12 months.
[3] Exhibit A (CMIA Investigation)- Report of Dr Amanda Nielson dated 21 December 2022.
25On 6 March 2023, the court conducted an investigation into his fitness to stand trial. Given the unanimity of the expert evidence and the absence of any contradictory submission, I determined that he was not fit to stand trial and was not likely to become fit to stand trial within 12 months, if ever.
26A finding that a person is not fit to stand trial is no small matter. It means that they cannot meet even the most basic standards that the law requires them to have in order for them to receive a fair trial.
27A special hearing was therefore required,[4] the purpose of which was to determine whether, on the evidence available, Mr Brown was guilty of dangerous driving causing death, or whether he was not guilty, or whether he was not guilty by way of mental impairment, or whether he committed the offence. There was no evidence he was not guilty because of mental impairment.
[4]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s14.
28The prosecution case was set out in a way consistent with the summary of prosecution opening dated 3 March 2023. The defence did not contest the fact that Mr Brown had committed the offence.
29On 7 March 2023, the special hearing took place. Consistent with the evidence and the way the case was run, the jury indeed found that Mr Brown had committed the offence.
30I subsequently ordered the expert reports and certificate of available services[5] required of me to determine whether or not to declare him liable to supervision or to order him to be released unconditionally.
[5] Under ss41 and 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) respectively.
31This is because upon a finding that a person who is unfit to be tried has committed an offence, the matter does not proceed through the criminal justice system in the usual way. The CMIA requires a decision to be made about that person's future in a different way, guided by the very specific principles (and by expert evidence) associated with any risk that a person may present if unsupervised and treated in the community.
32On 28 July 2023, the court received a letter enclosing a psychiatric report authored by psychiatry registrar Dr David Lien[6] and a certificate of available services.[7]
[6] Exhibit 2- Report of Dr David Lien and Dr Ria Zergiotis dated 28 July 2023.
[7] Exhibit 3- S47 Certificate of Available Services dated 28 July 2023.
33Dr Lien recommended that Mr Brown's proceedings be adjourned to allow him to transition into an aged care facility. By agreement, the matter was adjourned administratively to allow that to happen.
34On 3 November 2023, the court received a further letter enclosing an updated psychiatric report by Dr Lien[8] and another certificate of available services.[9]
[8] Exhibit 5- Report of Dr David Lien dated 31 October 2023.
[9] Exhibit 6- S47 Certificate of Available Services dated 3 November 2023.
35Dr Lien indicated that on 14 August 2023, Mr Brown was admitted to The Ashley, McKenzie Aged Care facility in Reservoir. The environment he now lives in is quite different to that which he existed in at the time of the offending. He now has a permanent place at the facility, and he has settled in there well. He is aware that he now resides in the facility and has not made any attempts to leave without informing anyone else. He now has a formal diagnosis of Alzheimer's dementia. He adheres to his medication. His risk management needs have been addressed by moving to the facility, which is appropriate to his clinical needs. The risk of him again committing a similar offence is mitigated by no longer having a driver's licence and having no access to a car. Further, the risk of misadventure in the medium or long term was mitigated by his permanent placement now in aged care.
36Dr Lien recommended that:[10]
… Mr Brown be unconditionally released and that a supervision order … is not required …
[10] Exhibit 5- Report of Dr David Lien dated 31 October 2023.
37The certificate of available services dated 3 November 2023 stated:[11]
Given the assessment of Mr Brown as outlined in the report of Dr Lien, there are no appropriate treatments or services which can be provided by Forensicare for the supervision of Mr Brown.
[11] Exhibit 6- S47 Certificate of Available Services dated 3 November 2023.
38Given these findings, the position put before me by both the Crown and the accused was that Mr Brown be released unconditionally. As I said, I will release Mr Brown unconditionally because both the evidence and the legal principles (which I will come to in a moment) that apply to this case compel me to do so, not simply because the parties agree that this is the correct legal outcome.
Family Impact
39It is of importance to acknowledge the suffering and pain of Matthew's family in these proceedings. I specifically refer to the powerful victim impact statement written by Matthew's mother, Joanne De Thomasis,[12] on behalf of the family and the subsequent family member report dated 24 May 2023.[13]
[12] Exhibit 8- Victim Impact Statement of Joanne De Thomasis dated 22 August 2022.
[13] Exhibit 10- Victim and Family Member Report Form of Joanne De Thomasis dated 24 May 2023.
40The impact this sudden, entirely preventable event has had on the De Thomasis family has been nothing short of catastrophic. It has caused unimaginable grief and anguish. Matthew's family has tried to navigate this unfathomable loss through their sadness and pain and understandable anger. It has taken a toll on every one of them and affected every area of their lives. One gets the real sense of what a remarkable young man Matthew was and just how much poorer the world is without him and just what a hole he has left in his very close family's life now he has gone.
41He, like his family, are utterly blameless here. The position his family have been left in is heartbreaking.
42Matthew's family want Mr Brown to be punished for his actions in whatever form the court would impose it, be it a prison sentence, supervision for years involving constant supervision without ever really being granted leave.
43The legal framework and the evidence in this case does not permit such an outcome for reasons that I will explain.
44I am acutely aware that this process will not likely reduce Matthew's family's pain or grief, but I want to stress that the outcome in this case is not, nor could it ever be, a measure of Matthew's life or reflective of the value that the court places on his life. His loss is utterly immeasurable.
Legal Framework
45Section 39 of the CMIA requires a parsimonious approach to be taken. That is to say:
In deciding whether to make … a supervision order … the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
46Further, under s40 of the same Act, these are the matters that I need to take into account:
(a)the nature of the person's mental impairment or other condition or disability;
(b)the relationship between the impairment, condition or disability and the offending;
(c)whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of their mental impairment;
(d)the need to protect people from such danger;
(e)whether there are adequate resources for the treatment and support of the person in the community; and
(f)any other matters the court thinks relevant.
47In the benchmark case of NOM,[14] the Court of Appeal observed that a supervision order is not a sentence or punishment, but one of treatment. The court said that a 'supervision order, be it custodial or non-custodial, must only be imposed if necessary for balancing the safety of the community with the person's freedom and autonomy'.[15] The court considered various remarks made during the parliamentary debates of the bill to the Act, including the comment that, 'No person should be deprived of his or her liberty unless it is absolutely necessary'.
[14] [2012] VSCA 198.
[15] Ibid at [68].
48One can see in the legal framework that applies to cases of this kind, notions of court-imposed punishment, condemnation, retribution, denunciation and general deterrence are all absent.
49Our justice system does not treat those who are so severely and profoundly cognitively impaired at the time of their trial in the same way as those who are of sound mind are treated.
Application of Legal Principles
50In this case, the conclusion to release Mr Brown unconditionally follows from the evidence of his dementia, his now permanent place in aged care, the matters referred to extensively by Dr Lien in the psychiatric report dated 31 October and again the conclusions of the same expert in that report.
51There are no appropriate treatments or services which can be provided by Forensicare for Mr Brown's supervision that would be required to supplement or augment the supports that he now has.
52Finally, the prosecution accepts that he should be released unconditionally.[16]
[16] Exhibit 9- Prosecution Email dated 10 November 2023.
Conclusion and Orders
53In conclusion, for the foregoing reasons, I will order that Mr Brown be released unconditionally pursuant to s18(4)(b) of the CMIA.
54Are there any matters?
55COUNSEL: No, Your Honour.
56HIS HONOUR: Thank you for your considerable assistance, counsel. I will adjourn the court.
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