Director of Public Prosecutions v CB
[2019] VSC 677
•10 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0300
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CB |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 July 2019 |
DATES OF RULING: | 2 August 2019 and 10 October 2019 |
CASE MAY BE CITED AS: | DPP v CB |
MEDIUM NEUTRAL CITATION: | [2019] VSC 677 |
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CRIMINAL LAW – Plea of not guilty by reason of mental impairment – Attempted murder – Consent mental impairment – Trial by judge alone – Accused found not guilty by reason of mental impairment – Non-custodial supervision order made — Nominal term of 25 years — Crimes (Mental Impairment and Fitness to be Tried) Act 1997 ss 20, 21, 23, 26, 28, 41 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Armstrong | Office of Public Prosecutions |
| For the Accused | Ms J Munster | Victoria Legal Aid |
DRAFT
HIS HONOUR:
On 29 July 2019 in this Court, the accused, CB, pleaded not guilty to the charge of attempted murder of Sandy McDonald on 25 February 2018 at Upwey.
The accused’s plea of not guilty is made on the basis that, at the time of the events giving rise to these charges, he was suffering from a mental impairment that had the effect that he did not know the nature and quality of the conduct, and he did not know the conduct was wrong.[1]
[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20.
The prosecution and counsel for the accused are in agreement that the evidence establishes the defence of mental impairment and, pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the ‘Act’), this matter has proceeded before a trial judge alone. That section enables me, as the trial judge, if satisfied that the evidence establishes the defence of mental impairment, to direct that a verdict of not guilty because of mental impairment be recorded. In the event that I am not so satisfied, then the accused must then be tried by a jury.
Circumstances of the offence
At the time of the offence, the accused was 17 years of age and the complainant was aged 15.
The accused and the complainant were students together at Upwey High School. The complainant was in Year 10 and the accused in Year 12. The complainant’s elder brother also attended Upwey High School and was in the same year as the accused.
In early November 2017, the accused contacted the complainant through Snapchat. He told her that he had received money from a family member and wanted to give her some money if she were to go to his house. Later the complainant went to the home of the accused, where they discussed the money and exchanged phone numbers. At some stage, the complainant received an amount of $120 from the accused. The accused is said to have asked what he would get in return. The complainant believed he was implying a request for a sexual favour, and she refused.
On Sunday, 25 February 2018, the complainant was in her bedroom and was having difficulty sleeping. She scrolled through her telephone contacts and came across a contact under the name ‘Ben’. She was unsure to whom that contact referred. At 10:48 pm, she called the contact number for ‘Ben’ and asked what his surname was. The number was in fact the accused’s. The receiver of her call hung up. At 11:22 pm, the accused called the complainant back, and they spoke for three minutes. During the course of the conversation, the complainant sought to establish whether the voice she was speaking to was the accused and he said it was not. He gave his name as ‘Ben Jackson’. The complainant had a contact on social media named Ben Jackson. The accused proposed the two of them meet at an intersection that was a short distance from his residence, which the complainant agreed to do. She left her residence at approximately 12 am.
On arrival, the complainant did not observe anyone to be present, so she called the phone number for ‘Ben Jackson’. The call was answered by the accused who instructed her that he was in a laneway near the intersection. He told the complainant to walk down the secluded path. As she walked down the pathway, she became aware that the person she was meeting was, in fact, the accused. She told him she was leaving and tried to depart, but the accused began touching her and grabbing at her in an attempt to take her further down the laneway.
As the complainant was endeavouring to get back to Mahoney Street, the accused resisted her efforts and began striking her in the head with a piece of wood. She tried to protect her head with her hands, which resulted in bruising and two broken fingers.
The complainant tried again to run away, but the accused caught her and pushed her to the ground. He began to strangle her with his hands around her throat.
The complainant attempted to distract the accused and said to him, ‘I love you’. She felt his grip loosen slightly before he said, ‘No, you don’t’, and resumed choking her. She kicked out at him, striking him in the groin area, and was able to break free. However, the accused caught her and dragged her under some bushes by the side of the road where the assault continued.
About 12:15 am, two witnesses heard the screams of the complainant and contacted police. One of those witnesses, Clancy Simpson, saw the accused on top of the complainant in the bush and yelled out to him demanding to know what he was doing and telling him to stop. The accused said, ‘She made me do it’. The accused crawled out of the bushes towards him. Mr Simpson retrieved an axe from the back of his car and, when the accused attempted to stand, he struck him with the handle of the axe to the legs and told him not to move. The accused complied and repeated, ‘She made me do it’.
At 12:29 am, the police arrived and First Constable Dingeldei spoke with the accused. After cautioning him, he asked him what happened. The accused said, ‘They told me to do it’. When asked who ‘they’ were, he did not respond. The police officer then asked the accused whether ‘they’ were people or voices in his head, and the accused replied, ‘They just come to me one day, they told me to kill her’. That theme was continued throughout the subsequent conversation.
The complainant was transported to the Monash Medical Centre. The medical examination revealed that the complainant suffered two fractured fingers; three lacerations to her scalp; extensive bruising to her face and her right cheekbone; extensive bruising to her shoulders, upper arms, and hands; and finger-like bruising across her neck consistent with the attempts at strangulation.
In the course of the hearing, I received the s 42 reports of Sandy McDonald and her parents, Renee Kirk and Nicholas Rourke, in which they outline, in detail, the consequences of the accused man’s actions.
Mental impairment
To determine whether the accused has the defence of mental impairment, he has been assessed by three practitioners: Dr Adam Deacon, a consultant psychiatrist; Dr Danny Sullivan, a consultant psychiatrist and the executive director of clinical services at Forensicare; and Dr Dion Gee, a forensic psychologist. In addition to their reports, each of the three professionals also gave evidence before me on 29 July 2019.
In his report dated 24 May 2018, Dr Deacon concluded that the defence of mental impairment was available to the accused. Dr Deacon examined the accused twice in March and then again in May 2018. In his report and in his evidence, Dr Deacon outlined the basis for his conclusion and the potential reasons why his mental impairment may have occurred:
[CB]’s diagnosis remains unclear, but it would seem more likely than not that he has experienced a psychotic state at the time of the offence. He also seems to have continued to experience psychotic symptoms following the offence, albeit in an attenuated form, but also with the emergence of new symptoms in the form of visual hallucinations … There is also a subtle sense that he is detached and perplexed by his experience; symptoms possibly commensurate with underlying psychotic illness. [CB] is adamant that he has never used illicit drugs, so a drug-induced psychosis is very unlikely … His differential diagnosis is therefore either a brief reactive psychosis or schizophreniform psychosis. Brief reactive psychosis refers to a transient psychotic state typically occurring in the context of marked stress. It is possible that [CB] was so unduly stressed by his personal circumstances that he experienced a psychotic reaction. The alternative diagnosis of schizophreniform psychosis refers to symptoms of schizophrenia that are present for a significant portion of the time within a one-month period. A third alternative diagnosis of feigned psychosis appears to very unlikely.
[CB]’s mental state was so impaired at the time of the offence that he appears to have been unable to reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. He therefore appears to be eligible for consideration of a mental impairment defence …[2]
[2]Adam Deacon, ‘Psychiatric Report’, 24 May 2018, [22]-[3] (emphasis in original).
That opinion is accepted both by counsel for the accused and for the prosecution.
The second psychiatric report, commissioned by the prosecution, was prepared by Dr Sullivan on 24 May 2019. He also found that the defence of mental impairment was available. In his report, Dr Sullivan offered the following opinion:
The likely diagnosis is of a brief psychotic disorder as set out in DSM-5, which has resolved essentially in its entirety. I understand that he has undergone monitoring through his local [Child & Youth Mental Health Service], without the need for medication or hospitalisation in the intervening period. This may have arisen in the context of emotional stressors, but the precipitating causes, if any, are only speculative.
I have considered whether [CB] has available a mental impairment defence, as set out in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. I consider that at the time of the alleged offence he was suffering an episode of psychosis which was not related to medical causes of substance use. The episode was atypical but appeared causally linked to the alleged offence as he reported experiencing command auditory hallucinations which instructed him to kill the victim. At the time of the alleged offence, I consider that he was aware of the nature and quality of the conduct. I do not, however, believe that at the time he was able to reason with a moderate degree of sense and composure about the wrongfulness of his actions; this awareness only develops subsequently. On that basis, I believe that a mental impairment defence would be available to [CB].[3]
[3]Daniel Sullivan, ‘Psychiatric Report’, 24 May 2019, [64]-[65] (emphasis in original).
Dr Sullivan again confirmed that opinion in his evidence before me, emphasising that the accounts given by the accused were consistent and candid, and that his motives did not appear to be sexualised.[4] He gave evidence that the accused had considered himself a passenger in the events and was therefore not aware of the wrongfulness of his actions and was deprived of any choice.[5]
[4]Transcript 44.16-45.30.
[5]Transcript 42.17-30.
Finally, forensic psychologist Dr Gee reached the opposite opinion. In his 13 February 2019 report, he concluded that the accused did not have a mental impairment that satisfied the criteria under s 20 of the Act.
Importantly, Dr Gee accepts that the accused was suffering from a brief psychotic disorder and that, but for the presence of the auditory verbal hallucinations encouraging and facilitating his conduct, it appears likely that the conduct would not have occurred. He said he agreed also that the accused had a ‘perceived inability’ to stop himself from engaging in the conduct during the index offence.[6] However, in his report, Dr Gee concludes as follows:
However, the nature and degree of that impairment – whilst in itself did seemingly result in a clear loss of behavioural control – was not, in this author’s opinion, sufficient to have the effect of compromising [CB]’s capacity to know the nature and quality of the conduct, nor thwart his ability to appreciate that his conduct was wrong.[7]
Therein lies the disagreement.
[6]Dion Gee, ‘Psychological Report’ 13 February 2019, [64].
[7]Ibid [67].
Dr Gee accepts the factual basis on which Drs Deacon and Sullivan came to the conclusion they did.[8]
[8]Transcript 53.31-54.8.
None of those professional witnesses who assessed the accused concluded that he did not know the nature and quality of the conduct pursuant to s 20(1)(a) of the Act.
However, for my purposes, and examining the provisions of s 20(1)(b) of the Act, if the accused was so affected by a brief psychotic disorder as to have no choice in the decision as to whether to carry out the conduct then, notwithstanding the opinion of Dr Gee, his mental impairment has resulted in him being unable to reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
Conclusion
In all those circumstances, I am satisfied on the evidence before me that, at the time that this offence was committed, the accused was suffering from a mental impairment such that, at least, he did not know what he was doing was wrong, pursuant to s 20(1)(b) of the Act.
I am satisfied on the balance of probabilities that that was so and that I should therefore direct a verdict of ‘not guilty by reason of mental impairment’ be recorded in respect to the sole charge on the indictment, pursuant to s 21(4) of the Act.
I also declare pursuant to s 23(a) of the Act, that the accused is liable to supervision under Part 5 of the Act.
On 2 August 2019, I delivered my conclusion thus far and made an order that the accused was liable to a supervision order under s 26 of the Act and that a s 41 report and a s 47 certificate of available services be provided to the Court. On 25 September 2019, I received both that report and the certificate.
The Court also received an additional s 42 reports pursuant to s 42 of the Act from the mother of the accused. Parts of these reports were read to the Court and her sentiments will be taken into account.
Ms Munster, on behalf of the accused and his family, publicly apologised and expressed regret to the family of the victim of this attack, some of whom were present in court.
The s 41 report, prepared by Dr Sobia Khan on 30 August 2019, confirms the diagnosis made by Dr Deacon and Dr Sullivan of brief psychotic disorder and detailed the treatments available. Dr Khan reports that it is important to note that the accused has maintained a stable mental state since this episode and has returned to activities that are deemed to be protective of him.
She also advises that the accused would benefit from close monitoring of his mental state and stress levels for a further period of one to two years, which is a critical period where the risk of recurrence of the brief psychotic disorder is higher, as is the risk of a conversion to full psychosis. The report further outlines that continued monitoring and medical intervention beyond this period may become counterproductive to his recovery, given his age and social development needs.
Dr Khan ultimately recommends that the Court consider the imposition of a non-custodial supervision order for the accused. That is the conclusion that Ms Munster, for the accused, contends for. Ms Warren, on behalf of the prosecution, has also indicated that the prosecution accepts the recommendations of Dr Khan.
In the circumstances, and bearing in mind the matter set out in s 40(1) of the Act, that is the course I will follow. I therefore make the following order that:
1)A non-custodial supervision order is made pursuant to s 26(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the ‘Act’).
2)Pursuant to s 28 of the Act, the nominal term of the supervision order is 25 years commencing on 11 June 2019, which includes the declared period of 122 days (excluding today) during which the accused was in custody.
3)[CB] is to be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or their delegate.
4)[CB] is to reside in a location known and approved by the Authorised Psychiatrist of VIFMH or their delegate.
5)[CB] is to abide by the lawful directions of the Authorised Psychiatrist of the VIGMH or their delegate.
6)[CB] is to comply with treatment, testing and attend appointments as directed by the Authorised Psychiatrist of the VIFMH or their delegate.
7)[CB] is not to leave the State of Victoria without the written permission of the Authorised Psychiatrist of the VIFMH or their delegate.
8)Pursuant to s 27(2) of the Act, the matter is to be brought back to this Court for review no later than 11 October 2021.
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