Director of Public Prosecutions v Gilmour
[2019] VSC 766
•14 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0061
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| DEREK GILMOUR | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 November 2019 |
DATE OF SENTENCE: | 14 November 2019 |
CASE MAY BE CITED AS: | DPP v Gilmour |
MEDIUM NEUTRAL CITATION: | [2019] VSC 766 |
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CRIMINAL LAW — Sentence — Recklessly causing serious injury — Recklessly causing injury — Assault — Attack on wife and rescuing neighbours —Accused suffered significant reaction to prescribed medications — Assessed by forensic psychiatrists — Medically-induced delirium — Delusional beliefs causally connected to offending —Verdins principles apply — Moral culpability significantly reduced — Plea of guilty — Remorse — Pre-sentence detention of 604 days —Time served appropriate sentence — Community corrections order for two years with conditions — Sentencing Act 1991 (Vic) ss 6AAA, 11, 45, 48C, 48CA, 48D, 48E, 48G, and 48K.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Piekusis | Office of Public Prosecutions |
| For the Accused | Mr G Casement | Stephen Peterson Lawyers |
HIS HONOUR:
Derek Gilmour, on 14 November 2019, you pleaded guilty to one charge of recklessly causing serious injury, one charge of recklessly causing injury and one charge of assault, contrary to the common law.
Those charges relate to incidents that occurred on 21 March 2018 at premises located at McDonald Street, Morwell where you and your wife were living.
On that same day as you pleaded guilty to those charges, I heard the prosecution opening presented in relation to the charges to which you had pleaded guilty as well as submissions made on your behalf by Mr Casement, of counsel, and on behalf of the prosecution by Ms Piekusis, of senior counsel, in relation to the sentence that should be imposed on you.
The maximum penalty for recklessly causing serious injury is 15 years’ imprisonment. The maximum penalty for both recklessly causing injury and common assault is five years’ imprisonment.
It is now my responsibility to sentence you for these three offences.
Background and circumstances of offending
The primary victim of your offending was your wife, Cheryl Gilmour. In addition two neighbours from nearby units who came to her aid during the incident, Graham Perry and Melisa Upton, were also injured as a result of your actions.
By way of background, you commenced a relationship with your wife in 1984 and were married to her in 1990.
You also have a long history of mental illness with a diagnosis of an unspecified anxiety disorder, and you report having taken psychotropic medication for much of your adult life.
On 5 March 2018, two weeks before the incident occurred, you underwent various medical testing that suggested a possible diagnosis of the illness known as Crohn’s disease. On 11 March, you presented at the LaTrobe Regional Hospital Accident and Emergency with reports of abdominal pain. Following your admission, you remained at the hospital until 16 March 2018 and were treated with prednisolone, which is a corticosteroid, to reduce bowel inflammation. That medication was given to you after discussion with hospital staff, during which you told medical staff that you had previously had an adverse reaction to the drug. You agreed to a trial of a moderate dose.
Prior to your admission, you had been taking tramadol daily for pain relief but, by 14 March 2019, hospital staff noted that you were showing signs of withdrawal. Staff refused to dispense tramadol solely for withdrawal.
On 20 March 2018, you and your wife were together at your residence at 18 McDonald Street, Morwell. She noticed that you were behaving strangely, speaking very quickly and, at times, talking to yourself.
In the early hours of the following morning, at approximately 1 am, your wife saw you urinate on your clothing in the living room, and later lie on the floor and place two of your fingers into your anus. You also grabbed your wife’s hand and attempted to get her to break your mobile phone for no apparent reason.
When she took your mobile phone away, you became enraged and commenced a prolonged attack on your wife. You threw her backwards into a wall and struck her to the head a number of times. You pulled the dentures out of her mouth and pushed her jaw in a downwards motion. At one point during the assault, her pants and underwear were removed and she was naked from the waist down. You apparently touched her vagina and breasts.
Your wife yelled and screamed in the hope that the neighbours would assist her. You apparently became short of breath and briefly paused your attack. Your wife took this opportunity to run to the front door to escape.
Two neighbours, Graham Perry and Melissa Upton, had heard her screams for help. Ms Upton called 000 and then went to your unit to give your wife assistance. You pursued your wife to the front door and pushed both women down the front porch stairs. Ms Upton managed to take your wife into her unit and lock the security screen behind them.
Outside the units, Mr Perry asked you what was happening. You did not respond to his questions and, instead, bumped him with your shoulder, which resulted in the two of you wrestling on the grass. You overpowered Mr Perry, who is not a young man, then punched him to the head, causing an abrasion to his forehead. That conduct constitutes Charge 1 to which you have pleaded guilty — assault contrary to common law. At that stage, you were observed to be laughing and rambling incoherently.
You then went to Ms Upton’s unit where she remained with your wife. You unsuccessfully attempted to enter by forcing the locked security door. You then went to a window in front of her unit, prised it open and entered the unit. Once inside, you picked up a large knife that was on a table in the living room. You went towards your wife and you stabbed her a number of times in the neck and chest. As a result, she suffered injuries to her throat, ear, chest and arms. This conduct is at the basis of Charge 2 – recklessly causing serious injury.
When Ms Upton tried to help your wife, you turned the knife on her. You stabbed her once or twice. She suffered a laceration across her chest and a cut to her finger. This conduct is at the basis of Charge 3 — recklessly causing injury.
A short time later, the police arrived at the unit complex. They saw you behind the security door of Ms Upton’s unit. When police attempted to gain access to the unit, you put the knife to your neck and began to cut yourself. Despite directions from the police to put the knife down, you continued to cut your throat. Eventually, the police forced the security door open, entered the unit, and deployed a taser, which incapacitated you and allowed the police to overpower and disarm you.
Paramedics attended and treated Ms Upton, your wife and yourself. Each of you required further medical attention. All three of you were flown by helicopter to either the Alfred Hospital or the Royal Melbourne Hospital.
Based on the evidence, there was no question that the injuries that were suffered by your wife in particular were serious, and she some required surgery. She had a single stab wound to the left cheek, a left eye closure defect, a superficial wound to the right side of her chest, and a wound to her upper right arm. She now has permanent nerve damage to the left side of her face, which has reduced her ability to fully close her left eye with some uncertainty as to her future vision.
Ms Upton sustained an incisional wound to the right chest wall that was three cm in depth and five cm in length, requiring surgery and suturing. She also required four sutures to her fourth finger on her left hand.
Whilst at the Royal Melbourne Hospital, staff noted you to be restless and agitated with tangential thinking.
You were released from the Royal Melbourne Hospital on 22 March 2018, you were taken to the Melbourne West Police Station where you were assessed and deemed fit to be interviewed. You then took part in a formal record of interview. You said you could not properly answer questions because you were not functioning like a human being. You described your wife as your friend and soulmate and stated that your marriage was normal and happy. When police put their allegations to you, you became upset and made a comment to the effect that you would rather end your life. You told police you did not want to face the allegations because ‘it was all too horrific’.
On 23 March 2018, you were taken to the Melbourne Assessment Prison where your presentation was recorded as disordered and bizarre, and you appeared mentally unwell. That behaviour continued until 26 March 2018. On that day, your medication was adjusted to include the sedative diazepam, and your condition improved over the following week.
Between 30 March and 9 July 2018, you were a patient at the Aire Health Unit at Ravenhall Correctional Centre, which is the acute psychiatric unit. You were diagnosed there as suffering from a medically-induced delirium, and by mid-April your condition had improved. The diagnosis of delirium was based on a number of factors relating to the introduction of new medications and sudden cessation of others, coupled with hospitalisation and use of steroids. On 6 July 2018, you were discharged from the Aire Health Unit.
Victim impact statements
The Court has received victim impact statements from Graham Perry and Melisa Upton. Both of their statements identify the emotional effect that your actions has had on them.
Mr Perry has suffered from emotional consequences given his age and his feelings of defencelessness at the time these things occurred. His feelings of vulnerability described in his statement are of significance.
This incident has also adversely affected Ms Upton’s state of mind, in addition to her physical injuries. It is clear from her statement that the incident has exacerbated some pre-existing mental health issues she has suffered from, and has required her to seek both psychological and psychiatric assistance, including medication. Ms Upton goes on to describe her perceived consequences this will have on her future.
Both of Mr Perry and Ms Upton will be affected by your actions for some considerable time to come. I have taken these statements into account in deciding the sentence that I should impose on you.
Personal circumstances
You are now 56 years of age. You have been married for 21 years and your relationship with your wife has lasted for 34 years. You do not have any children. The Court has heard that your wife continues to support you and is prepare to recommence your life together.
You have a minimal work history. Prior to being remanded, you were unemployed and had been on a disability support pension — primarily on the basis of your mental illness — for many years. As previously mentioned, you have a long and serious psychiatric history, beginning with treatment as a teenager for anxiety and depression. Those conditions continue to afflict you.
You had been a patient of the same private psychiatrist for some 25 years until her retirement. As psychiatrist Dr Fiona Best indicates in her report, dated 14 December 2019 and commissioned on your behalf, you have taken medication for much of your life and had been compliant with most of that medication. In your younger years, you used alcohol and cannabis but have been abstinent from illicit drugs and alcohol since that time.
As I have previously described, you were being treated for possible Crohn’s disease just prior to this incident and were prescribed a steroid medication regime. That medication appears to have played a significant role of creating the delirium that overtook you, which I will discuss in more detail shortly. You also reported suffering from other autoimmune disorders as well as osteoarthritis and radiculopathy, and you take medication for all these conditions.
You have no relevant previous convictions.
The proposed trial and mental health issues
You had been originally charged with attempted murder, aggravated burglary, intentionally causing serious injury and assault. Mr Casement, of counsel, on your behalf previously intended to conduct a trial on the basis that, at the time of these incidents, you were acting as a automaton — that is, your actions were not voluntary. That position was supported, to a degree, by the supplemental report provided by Dr Best from 14 August 2019.
To be called on your behalf, Dr Best diagnosed a medication-induced delirium as a result of the consumption of high-dose steroids and/or sudden cessation of sedative medication. She described that your actions on that night may have been intentional, but they were involuntary in the sense that they were driven by a delusional belief system caused by that delirium.
In response to Dr Best’s diagnosis, the prosecution commissioned a report by consultant forensic psychiatrist Dr Danny Sullivan. In that report, written on 21 September 2019, he recites a similar personal history but, importantly, came to a different conclusion on the issue of voluntariness. His conclusion was that the genesis of your behaviour was possibly a corticosteroid-induced disorder, or a disorder associated with tramadol or alprazolam abuse. In his opinion, the offences were most likely attributable to steroids. Dr Sullivan said:
The phenomenology suggests that his aggression occurred due to delusional beliefs which Mr Gilmour described as relating to the belief that he was in a parallel universe from his wife, and he developed the sudden belief that killing himself and her was the only way they could be together. His prevailing mood state was difficult to determine, but there were not clear preceding indications of euphoria or depression. There was agitated, abnormal and disinhibited behaviour noted, but it appeared that he retained knowledge of the identifies of his wife and neighbours.
Mr Gilmour describes intending to kill his wife and himself, albeit based on a delusional belief. He has described a conscious recollection of the events.
…Even if his consciousness was impaired, it was impaired, it was not absent, and his actions, although founded on delusional beliefs, were intended to kill his wife and himself rather than being outside his voluntary control.
Dr Sullivan added that it was not clear to him whether a mental impairment can arise from a temporary medication-induced psychotic disorder rather than a disease of the mind. But it if were possible, he considered that, at the time of the offences, you were aware of the nature but not the quality of your conduct, and that you were unable to reason with a moderate degree of sense and composure about the wrongfulness of your conduct.
The psychiatric reports of Dr Best and Dr Sullivan are of significance in sentencing you because they describe and assess your mental health in some detail. Their only disagreement was on the issue of automatism but, by your pleas of guilty to the three charges, you have accepted that your actions were voluntary.
The resolution of this matter by the filing of the most recent indictment was, in my view, entirely appropriate given your circumstances and mental condition. It remains obvious that you were suffering from very serious mental health conditions at the time of these offences and had been for some considerable time.
Plea of guilty
Your guilty pleas came at a relatively late stage of the proceeding, but not because of anything for which you could be criticised. You no doubt obtained and followed legal advice on which you were entitled to act. I accept that your pleas of guilty represent your willingness to take responsibility for what occurred on 21 March 2018 and do signify your remorse for the consequences of your actions. You are entitled to significant credit for those pleas.
Application of the Verdins principles
It is not in dispute that your consciousness was impaired and your actions were founded on delusional beliefs. The prosecution accept that you likely suffered an adverse reaction to the treatment you had received at the LaTrobe Regional Hospital together with withdrawal from previously prescribed medications.
Whilst likely a product of the steroids you received or the sedatives you ceased, your actions were also a product of your mental state and a mental disorder or an impairment of your mental functioning. As such, the principles of Verdins[1] apply, in my opinion, in particular to your moral culpability such that should be significantly reduced. Both general and specific deterrence should be significantly moderated.
[1]R v Verdins (2007) 16 VR 269.
Conclusion
The objective gravity of your offences is significant. Though, in your case, they must be viewed in the context of your mental state and the application of the principles in Verdins which flow from it.
You have now been in custody for 603 days, not including today’s date. In my opinion, and the prosecutor accepts that, when combined with future supervision by way of community correction order, that is a sufficient period of imprisonment for these offences.
The custodial sentence I will therefore impose on you will be as follows:
(a)On the charge of common assault you will be sentenced to be imprisoned for a period of three months;
(b) On the charge of recklessly causing serious injury you will be sentenced to be imprisoned for a period of 14 months;
(c) On the charge of causing injury recklessly, you will be sentenced to be imprisoned for a period of six months.
In the circumstances, I direct that one month of the sentence on Charge 1 and four months of the sentence on Charge 3 be served concurrently with the sentence on Charge 2, making a total effective sentence of 19 months.
Given the length of the total effective sentence, pursuant to s 11 of the Sentencing Act1991 (Vic) (‘Sentencing Act’), it is unnecessary to fix a minimum term as the whole of this period has now been served by you.
The Court has received the outcome report for the pre-sentence assessment conducted on 14 December 2019. That report indicates that you are suitable for a community correction order.
I direct that upon your release from custody you be subject to Community Corrections Order for a further two years and that order contain the following conditions:
The mandatory terms of this Community Correction Order under s 45(1) of the Sentencing Act are that:
(a) you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) you must comply with any obligation or requirement prescribed by the regulations;
(c) you must report to, and receive visits from the Secretary during the period of this order;
(d) you must report to the community corrections centre specified in the order within two clear working days after the order coming into force;
(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and
(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
The additional conditions that apply to this order for its duration under ss 48C, 48CA 48D, 48E, 48G and 48K of the Sentencing Act 1991 (Vic) are that:
(a) you must perform 200 hours of unpaid community work during the period of this order
(b) you must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or a residential facility;
(c) you must undergo any mental health assessment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
(d) some or all of the hours you undertake satisfactorily for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition;
(e) you are to be supervised, monitored and managed directed by the Secretary;
(f) you must reside at 12/6 Maryvale Crescent, Morwell VIC;
(g) you attend before this Court for review of your compliance on or about the 14 November 2020 or such other date as the Court specifies.
I declare that the period of pre-sentence detention as at 14 November 2019 to be 603 days (not including 14 November). I direct that this period be reckoned as time already served. I direct that those matter be entered into the records of the Court.
Section 6AAA
Pursuant to s 6AAA of the Act, I declare that, had you not pleaded guilty to this offence, the sentence I would have imposed on you would have been a total effective sentence of two years and six months.