Director of Public Prosecutions v Erbs

[2014] VCC 1039

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP ERBS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	23 June 2014
CASE MAY BE CITED AS:	DPP v ERBS
MEDIUM NEUTRAL CITATION:	[2014] VCC 1039

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Fitzpatrick
For the Accused	Ms S. McCrickard

HIS HONOUR: 

1On 29 November 20012, Mr Erbs was driving his white Ford sedan towards Drouin.  As he drove out of the Drouin township he observed Mr Moborne walking in an easterly direction on a gravel service road that runs parallel to Princes Way on the north and provides access to properties located on the north side of the road.  The service road is approximately 200 metres in length and has an uphill gradient, wide enough for only one vehicle; its grass shoulder on the southern verge.

2As Mr Erbs drove along Princes Way and passed Mr Moborne, he observed Mr Moborne make what he believed to be a menacing hand gesture towards him.  He continued travelling east for a few hundred metres and then performed a U-turn, then travelled in a westerly direction back.  As he drove past, he observed Mr Moborne glance at him in what he interpreted was a threatening and aggressive manner.  He then made another U-turn into the service road and swerved to his right off the gravel road and, it would appear, deliberately struck the victim, though he said later that he had not intended to.  He was endeavouring to get out of the road when he was struck and hit the windscreen.  Mr Moborne suffered extremely serious injuries and was subsequently airlifted to the Royal Melbourne Hospital. 

3The police interviewed Mr Erbs who told them that he believed that Mr Moborne had posed a threat to him and he had no other option than to confront him.  He described his actions as unplanned and instinctive. 

4I have before me a report from Ms Mullet, the mother of Mr Moborne.  I have read that and taken it into account.  It is quite clear that they are very serious injuries indeed and have caused a lot of grief to the victim and to his family.  The treatment is ongoing and will clearly continue for some period of time.  She points out in her report that her son did not know Mr Erbs and does not understand why he was attacked.  She says that his life has changed irreversibly and the effects will be lifelong.

5I accept all those matters and I have read and take into account as best I can the physical aspects of the medical reports which have been tendered along with that statement. 

6In the end, Mr Erbs was charged and the matter was sent to the County Court and came on before me on 14 November 2013, that is, approximately one year later. On that day, there were medical reports filed which described the circumstances of Mr Erbs. Pursuant to s.21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act, I directed, having been satisfied that the defence of mental impairment was established, that a verdict of not guilty because of mental impairment be entered onto the record. 

7I then subsequently, pursuant to s.23 of that Act, declared that Mr Erbs was liable to supervision under part 5.  During the course of that, various orders were made and it was sought that a report be made under s.41 and that a s.47 certificate of available services be obtained.  As I have indicated, on behalf of the victim and on behalf of herself obviously as well, Ms Mullet has now filed a s.42 report, which as I have indicated I have taken into account. 

8The circumstances relating to Mr Erbs can be gleaned from the two reports.  Mr Erbs has had a history of mental illness.  Most importantly, in his situation, one of schizophrenia.  The offending occurred on 29 November.  On 27 November 2012, only a couple of days before this driving, Mr Erbs was assessed as being actively psychotic at the La Trobe Hospital emergency department.  Somewhat to his father's surprise, as I understand it, he was discharged into his care. 

9On 29 November, the day of the incident, he remained actively psychotic.  He did not know the victim and the only clue as to why he drove in the direction of the victim is that he held a delusional belief that the victim standing to the side of the road was significant to him in some way.  The report of Ms Turnbull, psychiatrist, goes on to say, "In regards to the availability of the defence of mental impairment as set out in the Crimes Act, I believe Mr Erbs was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions.  Mr Erbs said he was in a fight or flight situation which appears to be at complete odds with the reality of the situation he found himself in, for he was in a car and the victim was some distance away, thus posing no real threat.  Mr Erbs was fearful and did not see any course of action other than driving his car towards the victim.  I believe the nature of Mr Erbs' psychosis was such that he could not consider any other course of action.  These fears and his subsequent actions were based on delusional misinterpretations of the victim and the situation as a whole."

10A further report from Dr Walton, the extremely well known forensic psychiatrist, was obtained and filed as well.  He said, among other things, "Mr Erbs' behaviour which constitutes his alleged offending, is bizarre enough even of itself.  Additionally so, once he provides his strange explanation for his conduct.  That Mr Erbs could possibly been in fear of the victim is clearly irrational and there is the consistent theme of his searching for meaning and signs, in this case the victim's gestures, when Mr Erbs is unwell.  In my opinion he was in the grips of a psychotic breakdown which required reasonably assertive psychiatric treatment once he was placed in custody. 

11Schizophrenia is the commonest cause of legal mental impairment and in my opinion Mr Erbs was deprived of the capacity to meaningfully distinguish right from wrong at the material time.  Mr Erbs has enjoyed a substantial, but somewhat less than complete, response to the antipsychotic medication which has been prescribed.  While entrenched delusions in the negative symptoms of schizophrenia are notoriously resistant to pharmacological intervention", he then goes on to say, "A trial of an alternative antipsychotic may be worthwhile". 

12He believes, Dr Walton, this is at the middle of 2013, that Mr Erbs could be managed within the community.  It was on the basis of those psychiatric reports which are in total unison that I took the view that the defence of mental impairment had clearly been established and that particular legislation came into force. 

13There are available services and a report has been obtained, as I have indicated, pursuant to s.41.  I note that the nominal minimum term is 20 years. I take into account all the factors referred to in s.40 of the Act, in so far as what should take place from here.  The main, not necessarily the main, but in most situations the main matter of the undertaking is the risk evaluation.  The report of Dr Kirsten Clayer goes into that.  I will not be reading from the entire report, it will remain on the court file.  The summary and recommendations of the risk evaluation are as follows.  "Mr Erbs has an established diagnosis of schizophrenia.  His mental state has been stable over the past 12 months on oral olanzapine.  In terms of historical factors, Mr Erbs has a few risk factors.  He has a history of verbal and physical aggression when acutely psychotic, including the index offence", that being this offence, "violence against his ex-wife when acutely psychotic and towards co-patients on the in-patient unit.  When he is stabilised on anti-psychotic medication, Mr Erbs has not demonstrated aggression towards others.  I note that at the time occurred he was actively psychotic and there was clearly a situation where the medication was not sufficient. 

14The second risk is a history of poor compliance on medication.  However, Mr Erbs has gained insight into his illness and now recognises the need for medication.  On the positive side, Mr Erbs has a history of pro-social behaviour, including employment for 10 years prior to his first episode of  psychosis and a marriage which lasted 16 years.  He has not abused illicit substances and therefore there does not appear to be a personality disorder.  At the time of the assessment, there were no concerning clinical risk factors.  Mr Erbs' mental state had been stable on medication over the past 12 months.  He does not use illicit substances or alcohol.  He is compliant with the medication and has superficial insight into his illness.  He has shown remorse regarding his index offence.  The main issues currently to monitoring his mental state are his ruminations at night and these fleeting thoughts of suicide."

15In so far as that is concerned, I think I should also include the remarks of Dr Walton, so far as remorse is concerned, and this is a matter that I have discussed with Dr Walton on many occasions.  He says, "Given that schizophrenia commonly distorts proper emotional expression and there is clear evidence of that with Mr Erbs, he makes nothing short of a remarkable expression of remorse". 

16The report of Dr Clayer goes on, "Mr Erbs' stable accommodation is well supported by family members.  His father reports the community also supports Mr Erbs.  He has not been ostracised as a result of the index offence.  He has engaged well with the community mental health team", and the overall, with respect to relevant factors impacting on risk of further offending related to recurrence of his schizophrenia illness, the report says, "I would say that Mr Erbs' risk of re-offending appears directly related to the risk of recurrent illness.  He is currently in remission of his illness and he is well engaged and monitored by the La Trobe Community Mental Health Services and attending his psychiatric review appointments.  Compliance whether on medication can be further assessed by doing intermittent serum levels of olanzapine.  In my opinion, Mr Erbs is appropriate to be placed on a non-custodial supervision order.  He is aware of the possibility of a non-custodial supervision order and the associated need for ongoing supervision and was accepting of this." 

17He goes on to say, "If the court were to impose a non-custodial supervision order, Mr Erbs; psychiatric treatment would continue with La Trobe Community Mental Health Services and the current management plan already outlined.  Forensicare in a primary supervisory role will offer expert advice and support to the area mental health service."

18It is pointed out clearly that should Mr Erbs' behaviour pose significant risk of endangerment to others, recourse to the courts under s.29 or 30 will be available and a revision to a custodial supervision order can be sought by the appropriate people.  Those conditions are attached to the report and the certificate of available services there as well. 

19Clearly the report is recommending a non-custodial supervision order.  Obviously in a situation like this, the minimum term would be for 20 years and I would be seeking a review in three years and he will be monitored on a regular basis by La Trobe Valley Health.  I do not require a hearing at the end of each 12 months, but obviously in these situations reports will be provided to the parties. 

20Accordingly, I propose to place him on such a supervision order with the following conditions; that he be under the supervision of the authorised psychiatrist at the Victorian Institute of Forensic Mental Health, or their delegate; that he reside at a location known and approved by the authorised psychiatrist at the VIFMF, that is the Institute, as I have already referred to it; that he abide by the lawful directions of the authorised or delegated psychiatrist of the VIFMH, or the nominee of the authorised psychiatrist or their delegate; that he comply with treatment, testing and attends appointments as directed by the authorised or delegate psychiatrist of the VIFMH or their nominee; that he abstain from the abuse of alcohol and from the use of illicit drugs, which I understand he does in any event, and that he not leave the State of Victoria without the written permission of the authorised psychiatrist or their delegate or the VIFMH, and orders made with those conditions.

21Are there any other associated order I have to make?

22MR FITZPATRICK:  No, Your Honour.

23HIS HONOUR:  No, all right, and obviously Ms McCrickard has explained to him the circumstances of such an order - - -

24MS McCRICKARD:  Yes, Your Honour.

25HIS HONOUR:  - - - and what would occur if he became unwell and the need to be compliant with medication.

26MS McCRICKARD:  YES. 

27HIS HONOUR:  Yes, all right, thank you.

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