Director of Public Prosecutions v Grant (a pseudonym)
[2022] VCC 2005
•22 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON GRANT (a pseudonym) |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 June 2022 & 16 September 2022 | |
| DATE OF REASONS: CASE MAY BE CITED AS: | 22 November 2022 DPP v GRANT (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2005 | |
REASONS FOR ORDER
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Subject:Criminal Law
Catchwords: Reasons for order – conduct endangering person – threatening to assault an emergency worker on duty – assaulting an emergency worker on duty – Plea of not guilty by reason of mental impairment – Brief psychotic disorder – Whether alcohol intoxication cause of offending behaviour – Accused found not guilty by reason of mental impairment
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:
Order:Unconditional Release pursuant to s 23(b) of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Dr J Harkess | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J McGarvie | Stary Norton Halphen Lawyers |
HIS HONOUR:
1On 10 June 2022, the accused, Simon Grant,[1] pleaded not guilty to an indictment containing one charge of conduct endangering persons (Charge 1), two charges of threatening to assault an emergency worker on duty (Charges 2 and 3), and one charge of assaulting an emergency worker on duty (Charge 4).
[1] A pseudonym used to protect the accused’s identity who is not guilty of the charges because of mental impairment.
2Mr Grant’s plea of not guilty is made on the basis that, at the time of the conduct constituting the 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, thereby engaging the provisions of s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’).
3The prosecution and counsel for the accused agree that the evidence established the defence of mental impairment and, pursuant to s 21(4) of the Act, this matter proceeded before me sitting as a judge alone. Under s 21(4)(a) of the Act, if the trial judge is satisfied that the evidence establishes the defence of mental impairment, the trial judge may direct that a verdict of not guilty because of mental impairment be recorded.
4On 10 June 2022, having reviewed the evidence, I ordered that a verdict of not guilty because of mental impairment be recorded. Pursuant to s 40(2) of the Act, I ordered that a report be prepared by Forensicare addressing the relevant criteria within the provision and adjourned the matter to 14 September 2022 for a further mental impairment hearing. The matter was subsequently administratively adjourned to 16 September 2022.
5On 16 September 2022, I delivered a brief ex tempore judgment ordering that Mr Grant be released unconditionally pursuant to s 23(b) of the Act. These are my reasons for doing so.
Circumstances of the Offending
6On 16 December 2019, Mr Grant was at home with his family. At approximately 7.20am, after he had drunk a significant quantity of red wine the night before, he walked very slowly to the driveway outside of his house. Mr Grant’s mother spoke to him but he did not reply. Mr Grant’s mother also walked outside to get her car from the garage.
7Mr Grant walked to the side of the driveway and started doing a Māori haka. His mother asked him to stop but he kept going. Mr Grant’s mother continued to try and talk to him. Eventually he stopped doing the haka but continued to ignore his mother and was not responding to her verbally. Mr Grant’s mother tried to place her hands on him to see if he was okay and Mr Grant proceeded to wave his arms around.
8Mr Grant then got into the driver’s seat of his car which was parked in the driveway. Mr Grant’s mother told him that he could not drive because he had been drinking alcohol. She tried to take Mr Grant’s car keys from him. As she tried to grab the keys from his hand, Mr Grant hit her in the mouth causing her to fall backwards. He then shut the car door and started the vehicle (this is an uncharged act).
9Mr Grant drove his car out of the driveway of his home and into a court in the suburb of Mulgrave. He drove around the court and stopped his car facing number 6. Mr Grant started revving the engine before driving up onto the footpath and onto the front yard of a neighbour’s house at number 4. He drove his vehicle across the front yard and collided into a brick letterbox. (Charge 1).
10The car became stuck and Mr Grant remained in the car revving the engine and sounding the horn for approximately twenty minutes, causing smoke to come from the engine.
11At 7.28am, police were called to the incident by nine complainants. A number of police officers were dispatched to the incident.
12Police arrived at approximately 7.50am and at approximately 8.00am entered the court. Acting Sergeant Apostolopoulos, First Constable Smith, Senior Constable Bui, Constable Calder, and First Constable Sidari were on foot. First Constable Bassett and Constable Huysmans were in a marked police van. All police members were in full police uniform and wearing safety equipment.
13As police entered the court, Mr Grant was sitting in his car. As they approached, he got out of his car. He was completely naked. He walked to the driveway of number 3 and adopted a fighting stance by standing with his fist’s raised and clenched.
14Police were about 20 metres from Mr Grant and announced themselves as police. They gave him verbal instructions to get down on the ground. As police moved toward Mr Grant, he quickly returned to the driver’s side of his car. Police attempted to stop him from entering the car but Mr Grant got into the driver’s seat with his right leg out of the car.
15Mr Grant reached into the middle console area and retrieved a box cutter style Stanley knife with the blade protruding which he held in his right hand. F/C Smith and S/C Bui deployed a small can of OC spray and C/- Calder deployed a large-sized can of OC foam on Mr Grant, making contact with his face. Neither the OC spray nor OC foam had any effect on Mr Grant and he started walking towards the police members while brandishing the box cutter in his right hand, raising it in a threatening manner. Police made a partial cordon around Mr Grant and continued yelling ‘police don’t move, drop the knife’.
16Mr Grant continued to approach police whilst brandishing the box cutter. He did not respond to police demands to drop the knife. Mr Grant walked onto the footpath and approached F/C Bassett, who was walking backwards towards Mr Grant’s car that was in the front yard of house number 4. He got to approximately 4.21 metres from F/C Bassett (Charge 2).
17Fearing that Mr Grant were about to stab him, F/C Bassett fired one shot into the Mr Grant’s lower stomach/groin area. Mr Grant fell to the ground for a short time before getting up, still brandishing the box cutter. He continued to approach police in a threatening manner.
18Police continued yelling, ‘police don't move, drop the knife’. However, Mr Grant continued to approach, forcing the police to retreat onto the road. He continued walking towards F/C Smith who was standing next to F/C Bassett. He approached to approximately 5.14 metres from F/C Smith causing him to believe that he was going to be cut by the knife (Charge 3).
19F/C Smith then fired one shot into Mr Grant’s stomach area, causing him to fall to the ground. Mr Grant continued holding the box cutter and attempted to raise himself off the ground for several minutes before falling onto his back.
20Police members A/S Apostolopoulos, F/C Sidari and C/- Huysmans used their batons to try and disarm Mr Grant and knock the box cutter from his hands, however he continued to hold the knife in his right hand and lash out at police. Mr Grant slashed F/C Sidari with the box cutter on the right boot, cutting through the boot and leaving a mark on her foot. (Charge 4).
21Mr Grant then attempted to cut his own throat and stab himself in the eyes with the box cutter.
22Police continued to strike Mr Grant’s right hand to remove the box cutter, breaking it into pieces in the process. Mr Grant was eventually disarmed and arrested. Ambulance Victoria members treated Mr Grant and took him to the Monash Medical Centre.
23On 8 January 2020, Mr Grant was released from the Monash Medical Centre and interviewed by D/S/C Matthew Sciortino from the Armed Crime Squad. Mr Grant remembered getting pepper sprayed and being shot. He also said he remembered his sister screaming and that when he drinks, he blacks out.
Mental Impairment
24Three psychiatric reports were tendered at the mental impairment hearing on 10 June 2022. A psychiatric report by Dr Jacqueline Rakov, consultant forensic psychiatrist, dated 19 October 2020,[2] was tendered by counsel for the accused. Two psychiatric reports were tendered by the prosecution; the first report was Dr Praveen Das, consultant forensic psychiatrist, dated 3 December 2021[3] and the second by Dr Rajan Darjee, consultant forensic psychiatrist, dated 14 February 2022.[4]
[2] Exhibit P3.
[3] Exhibit P4.
[4] Exhibit P5.
25Mr Grant was assessed by Dr Rakov on 15 October 2020. In her report, she opined he met the criteria for a ‘first episode psychosis’. She noted in the lead up to the episode, Mr Grant experienced significant stress relating to his accommodation and work, as well as sleep deprivation. Dr Rakov opined that, although he consumed alcohol the night before the offending, he was not unfamiliar with alcohol, and his symptoms persisted past his extubation in intensive care. According to Dr Rakov, this suggested Mr Grant’s psychosis was not related to any acute intoxication.
26Dr Rakov opined, Mr Grant was suffering a mental impairment at the time of the incident, stating:
It is unclear what specifically he was thinking at the time of the alleged offending but taking into account the bizarre combination of screaming, posturing, nudity, engine revving, driving across the court and attempting to stab himself in the throat and eyes, would suggest he did not comprehend the nature and quality of his conduct. With the impairment driving his behaviour, he could not reason with a moderate degree of sense and composure about the wrongfulness of his actions as perceived by reasonable people.
27Dr Rakov was satisfied that the defence of mental impairment, as set out in s 20 of the Act, is available to Mr Grant, having come to this conclusion in light of her diagnosis he was experiencing symptoms of psychosis which drove his behaviour at the material time.
28Mr Grant was assessed by Dr Das on 9 July 2021. In his report, Dr Das opined he was not able to confidently ascertain whether the mental impairment defence is available to Mr Grant, owing to the difficulty of eliminating alcohol intoxication as a possible contributor to his offending behaviour.
29Dr Das reported according to Diagnostic and Statistical Manual of mental disorders 5th edition (DSM 5), Mr Grant fulfils the first two criteria for brief psychotic disorder, wherein he had disorganised speech and grossly disorganised behaviour, and with the episode only lasting a few hours. However, Dr Das opined the third criteria, requiring ‘the disturbance is not better explained by other psychotic disorders … and should not be attributable to the physiological effects of a substance’, was less clear.
30The DSM 5 criteria for alcohol intoxication was applied. Dr Das noted Mr Grant met criteria A – recent ingestion of alcohol, although it was not clear the exact time of his last drink. Dr Das opined, the events of the offending clearly show Mr Grant had engaged in clinically significant problematic behavioural or psychological changes, thereby meeting criteria B. In terms of criteria C, Dr Das noted a number of important factors could not be confirmed, including the quantity Mr Grant drank and the time of his last drink and there was no record of blood alcohol level testing in the accused medical records.
31Based on CCTV and Victoria Police body worn camera video evidence and witness reports, Dr Das concluded that at the time of the offending, Mr Grant had grossly disorganised behaviour suggesting he were unaware of the nature and quality of his conduct.
32Dr Das also opined Mr Grant’s presentation at the time suggests he could not, with a moderate degree of sense of composure, appreciate that his conduct, as perceived by a reasonable person, was wrong. However, Dr Das could not establish Mr Grant was labouring under an exclusively psychotic mental state and that alcohol had no role to play in his behaviour.
33According to Dr Das’s assessment, it was not possible to conclusively eliminate nor include alcohol intoxication at the time of offending. He was therefore unable to confidently ascertain if the mental impairment defence is available to Mr Grant. However, importantly, Dr Das’s opinion did not exclude such a mental impairment defence from being available to the accused.
34Mr Grant was assessed by Dr Darjee on 12 January 2022. Using DSM-5, Dr Darjee opined the appropriate diagnosis for the mental disturbance Mr Grant was suffering on the morning of the incident was brief psychotic disorder. This is called acute and transient psychotic disorder in ICD-11. Dr Darjee opined Mr Grant was also suffering from delirium after he was shot by the police and lost a large amount of blood. Although he had consumed a bottle of wine the night before the offences, Dr Darjee opines the behaviour he displayed was not primarily due to alcohol intoxication.
35Dr Darjee noted the features of Mr Grant’s mental state before he was shot included stereotyped movements, a trance like state, disorganised and unintelligible speech and being consumed and preoccupied by Māori rituals and customs. Dr Darjee opined he may have been experiencing auditory hallucinations.
36In his report, Dr Darjee noted Mr Grant appeared to have been somewhat preoccupied with Māori issues in the context of breaking his cousin’s Taiaha, but also appeared to have been perplexed, self-absorbed and self-referential, in the context of emotional turmoil. He noted Mr Grant appeared driven by his abnormal mental state to resist his mother, drive and crash the car, and then approach the police with a knife, whilst naked.
37Dr Darjee opined that after Mr Grant was shot, in addition to the above features of a psychotic episode, owing to blood loss and lack of oxygen to his brain, he became acutely organically impaired. His level of consciousness fluctuated and diminished, his awareness of his surroundings would have become limited and his reactions to emergency workers would have been out of his conscious control.
38In terms of mental impairment, Dr Darjee opined that the behaviours which constitute the offending were due to the brief psychotic episode and/or delirium caused by Mr Grant’s gunshot injuries. Dr Darjee opined if he had not been acutely psychotic, the alleged offences would not have occurred. Mr Grant’s acutely disturbed, psychotic and then delirious mental state, was both necessary and sufficient to account for his behaviour. Dr Darjee further opined:
In my view it is clear from the available accounts of his behaviour, including the video footage, that he did not know the nature and quality of the conduct, and he also did not know that the conduct was wrong. He could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. Although his precise perceptions, thoughts and decision-making processes at the time cannot be known, it is very likely that he had lost contact with reality, was not fully aware of his surroundings and responded as he did due to his acute mental disturbance. Therefore I am of the view that he has a mental impairment defence available to him.
39All three psychiatrists opine that Mr Grant did not know the nature and quality of his conduct and could not reason with a moderate degree of composure about whether his conduct was wrong. The difference of opinion arises from Dr Das’s conclusion he cannot eliminate alcohol intoxication as a causal factor for the offending behaviour. Significantly, Dr Das does not opine the accused was not suffering from a brief psychotic episode.
40Having considered all three psychiatric reports, along with both parties’ submissions that the defence of mental impairment is established, I am satisfied on the balance of probabilities that at the time the accused committed the offending he was suffering from a mental impairment such that he did not know the nature and quality of his conduct and he did not know that his conduct was wrong.
Conclusion
41Pursuant to s 40(2) and 41 of the Act, on 26 August 2022 I received a psychiatric report by Dr Roth Trisno, consultant psychiatrist at Forensicare, dated 22 August 2022.[5]
[5] Exhibit C1.
42Dr Trisno assessed Mr Grant on 14 July 2022. In his report, Dr Trisno concluded Mr Grant experienced a brief psychotic disorder that is currently in full remission.
43Dr Trisno assessed Mr Grant’s risk of future violence using the HCR-20 assessment tool. He opined Mr Grant’s risk of perpetrating violence is low. He noted the most likely scenario that increases Mr Grant’s risk of harm to others would be a further episode of psychosis, however, owing to the preservation of his insight, his understanding of illness and treatment needs, together with the presence of psychosocial stability and close supports, this risk is mitigated.
44Dr Trisno opined there is no evidence to support that Mr Grant’s risk of harm to himself or others will increase as a result of an unconditional release.
45Together with Dr Trisno’s report, I received a certificate of available services from Forensicare pursuant to s 47 of the Act.[6] The certificate stated that, given Dr Trisno’s opinion that Mr Grant should be released unconditionally, there are no appropriate treatments or services which can be provided by Forensicare for the supervision of the accused.
[6] Exhibit C2.
46Having considered Dr Trisno’s report and the certificate of available services, on 16 September 2022 I ordered Mr Grant be released unconditionally pursuant to s 23(b) of the Act.
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