Director of Public Prosecutions v Doan (Ruling No 2)

[2014] VSC 112

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 2014 0006

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAM NHAT DOAN

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2014
DATE OF RULING:	18 March 2014
CASE MAY BE CITED AS:	DPP v Doan (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 112

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CRIMINAL LAW – Murder – Verdict entered of not guilty by reason of mental impairment – Report received under s 41 of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Custodial supervision order imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Grant	Solicitor for Public Prosecutions
For the Accused	Mr J D Williams	Victoria Legal Aid

HIS HONOUR:

1. The accused man, Nam Nhat Doan, was charged on indictment with one count of the murder of Craig Smith at Melbourne on 4 June 2013. 

1. The accused pleaded not guilty to that charge on the grounds of mental impairment. 

1. On 13 February 2014, I conducted a hearing, pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.  Having heard evidence in relation to the matter, I found that I was satisfied that the accused had established a defence of mental impairment.  I therefore directed that a verdict of not guilty, on the grounds of mental impairment, be recorded. 

1. I also declared, under s 23(a) of the Act, that the accused is liable to supervision under Part 5 of the Act, and I remanded him in custody in the Thomas Embling Hospital pursuant to s 24(1)(b) of the Act. The hearing of the matter was further adjourned to today, pending receipt of a report under s 41(1) of the Act, and a certificate of available services under s 47.

1. During the period of the adjournment, I was provided with a copy of the victim impact statement prepared by Michelle Smith, the sister of the deceased man.  Craig Smith was the direct victim of the offence in respect of which I have entered the verdict.  However, there are others who have also suffered greatly as a result of his untimely and violent death.  Ms Smith’s statement eloquently depicts the lasting, and devastating, effects which the violent death of Craig Smith has had on her.  In every real sense, she, also, is a victim of that offence. 

1. I have now received, and read, a certificate of available services, dated 13 March 2014, certifying that facilities are available for Mr Doan at Thomas Embling Hospital. 

1. I have also received, and read, the report of Dr Caroline Simms, a consultant psychiatrist, of the Victorian Institute of Forensic Mental Health.  Dr Simms has been responsible for the treatment of Mr Doan, at the Atherton Unit of Thomas Embling Hospital, since 8 July 2013. 

1. Dr Simms’ report details the ongoing issues relating to Mr Doan’s psychiatric condition, which need to be addressed in the future years.  In particular, Mr Doan continues to hold the bizarre delusional belief, which afflicted him at the time of the index offence, that he is in communication with an extra-terrestrial entity, who he is able to consult, and from whom he receives instructions, via a dictionary.  Mr Doan lacks insight into the fact that he suffers a mental illness, and he also has poor insight into the impact of the use by him of illicit substances on his illness.  He has been resistant to receiving medication by Clozapine, which would be directed to assisting him with his long standing illness.  Nevertheless, Mr Doan has made some, albeit limited, progress in the treatment of his disease.  However it is clear from Dr Simms’ report that Mr Doan has a long path to recovery before he would be suitable for release on a non-custodial supervision order. 

1. In conclusion to her report, Dr Simms states:

“At this point in time Mr Doan still has persisting psychotic symptoms.  Given that his serious offence was clearly linked to an abnormal mental state, his persisting symptoms mean he would pose a serious risk of violence to others in a less secure setting than Thomas Embling Hospital. 

Mr Doan, in my opinion, would benefit from continuing treatment in a secure psychiatric facility to stabilise his mental state.  His offence specific issues will require long term assessment, given his relative lack of remorse and poor insight into his illness and substance abuse.  This would be best achieved by a multi-disciplinary team in an evolving therapeutic alliance with him.  This type of work would need to be carried out in a secure hospital setting, with a concentrated focus on recovery and rehabilitation. 

He will also require a long term graduated rehabilitation program towards his vocational, educational, and recreational needs.  In my opinion, such comprehensive rehabilitation needs can only be effectively met by way of a Custodial Supervision Order (CSO).”

1. Based on Dr Simms’ report and on the evidence, which I heard and read at the previous hearing, and which I summarised in my previous ruling, it is clear that the only appropriate order to be made in this case is the imposition of a Custodial Supervision Order. 

1. Accordingly, pursuant to s 26(2)(a)(i), I order that the accused, Nam Nhat Doan, be liable to a Custodial Supervision Order in an appropriate place, namely, Thomas Embling Hospital.  Pursuant to s 28 of the Act, I fix a nominal term of the supervision order of 25 years from 4 June 2013.  I commit the accused man to the custody of the Victorian Institute of Forensic Mental Health.