Director of Public Prosecutions v LM
[2018] VSC 451
•20 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
MELBOURNE
CRIMINAL DIVISION
S CR 2017 0043
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LM |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May, 9 August 2017 |
DATE OF REASONS: | 20 August 2018 |
CASE MAY BE CITED AS: | DPP v LM |
MEDIUM NEUTRAL CITATION: | [2018] VSC 451 |
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CRIMINAL LAW – Murder – Consent mental impairment – Accused found not guilty by reason of mental impairment – Custodial supervision order made – Nominal term of 25 years – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 21, 26, 28, 41 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Judd QC with Mr J Livitsanos | Solicitor for Public Prosecutions |
| For LM | Mr T Marsh | Victoria Legal Aid |
HER HONOUR:
LM was charged with the murder of his ex-partner, Kim Lynch, in February 2016. Ms Lynch and LM had been in a relationship for three or four months before her death.
For many years, LM has suffered from a schizophrenic illness. At the time of the offending, LM was an involuntary inpatient at the Dandenong Hospital, having been admitted on 30 January 2016 in a psychotic state. He was granted three hours of day leave on 5 February 2016, on the condition that he remain with his grandmother at all times. After leaving hospital with his grandmother, LM asked her to take him to see Ms Lynch, from whom he had recently separated.
LM went with his grandmother to Ms Lynch’s accommodation to collect her; all three of them then went to LM’s apartment. After their arrival, LM refused to let his grandmother take him back to the hospital. He said he wanted to spend some time with Ms Lynch, and that he would find his own way back. His grandmother left the apartment and called the hospital. I understand that the hospital in turn notified the police. There is no evidence before the court as to what, if any, steps the police took to locate LM and return him to the hospital, during the week following his absconding.
LM and Ms Lynch remained at the apartment together for a number of days. LM called a friend and told him that he had escaped from the hospital, and planned to go to Tasmania. Concerned, the friend went to LM’s apartment on 11 February. During the visit, Ms Lynch told the friend that LM had physically abused her. Consequently, the friend offered for Ms Lynch to stay with him that evening, which she accepted.
The next day, 12 February, Ms Lynch returned to LM’s apartment to gather her belongings and end her relationship with LM. That was the last day that anybody other than LM saw her alive. The next afternoon, neighbours of LM saw him jumping over their adjoining fence, and heard him saying that he was schizophrenic and was hearing voices.
LM was eventually re-admitted to the Dandenong Hospital on 14 February, after he called 000 and asked to be returned.
On 20 February, LM telephoned his stepfather from hospital and told him “I’m in a lot of trouble”. He asked his stepfather to go to his house and “take what’s in the cupboard in the front room and put it in the shed and when I get out tomorrow I will get a car and get rid of it”. When asked what was in the cupboard, LM stated “B-O and two more letters”. His stepfather understood that to mean a body. LM told his stepfather that he was hearing voices, and believed they would kill him unless he killed Ms Lynch.
His stepfather contacted the police, who found Ms Lynch’s body in a cupboard in LM’s apartment later that day. The cause of her death was neck compression. She had died several days earlier. She was 41 years old.
LM was arrested and taken to the Dandenong police station; however, after being assessed, he was deemed not fit for interview.
The defence did not dispute that LM killed Ms Lynch, in the circumstances alleged by the prosecution. However, the defence said LM did so at a time when he was suffering from his schizophrenic illness.
Initially, a question was raised about LM’s fitness to stand trial. Following investigation, the prosecution and defence experts agreed that LM was fit to participate in a plea hearing. They also agreed that, at the time of the offending, he was suffering from a mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”).
On 22 May 2017, a hearing was held to determine the issue of mental impairment. Because both the prosecution and the defence agreed that the expert evidence established the defence of mental impairment, s 21(4) of the Act allowed that evidence to be heard by a judge alone.
I was provided with three reports prepared by Dr Adam Deacon (a psychiatrist engaged by the defence), one report from Dr Warrick Brewer (a neuropsychologist engaged by the defence) and one report from Dr Gunvant Patel (a psychiatrist at Forensicare, engaged by the prosecution). Dr Patel also gave oral evidence at the hearing. The undisputed expert evidence is as follows.
LM is now 36 years old. He was first diagnosed with a psychotic schizophrenic illness in his early 20s. He also has an acquired brain injury, which he sustained during a road traffic accident in his 20s. He has impaired cognitive functioning, which is often associated with long-standing schizophrenic illness. He has antisocial personality traits. When he is psychotic, LM suffers from auditory hallucinations and paranoid beliefs.
Over the years, LM has had several in-patient admissions, as well as being managed in the community under the Mental Health Act. At times, his psychiatric treatment has been provided on an involuntary basis.
At the time of the offence, LM was also a heavy user of heroin and methamphetamine (“ice”). Using ice after he absconded from the hospital would have increased the frequency and severity of his paranoid delusions and auditory hallucinations, to which he believed he had no choice but to respond.
Both psychiatrists were of the opinion that LM was very likely to have been actively psychotic at the time of the offence. That opinion was based on the nature of his illness, his self-reported symptoms (which included hearing voices telling him he would die if he didn’t kill Ms Lynch), and the fact that LM was psychotic at the time of his re-admission to the hospital.
At the conclusion of the hearing, I was satisfied that the evidence established the defence of mental impairment. That is to say, I was satisfied that LM was suffering from a mental impairment at the time of committing the offence, the effect of which was that he could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.
I directed that a verdict of not guilty because of mental impairment be recorded, and declared LM liable to supervision pursuant to Part 5 of the Act. LM was remanded in custody in prison, pending the preparation of a report required by s 41(1) of the Act, which would address issues such as LM’s prognosis, and a suggested treatment plan for managing his mental health problems.
The s 41 report was provided on 28 July 2017 by Dr Kate Roberts, a psychiatrist at Forensicare. Since being in custody, LM had been receiving two different anti-psychotic medications. He continued to report ongoing auditory hallucinations at night, although they were “non-command” and mild in nature, compared to what he experienced in the lead up to Ms Lynch’s death. Dr Roberts believed that he had demonstrated a partial response to treatment. Given LM’s static and dynamic risk factors, Dr Roberts’ view was that he has an elevated risk of future violence.
Dr Roberts recommended that LM be placed on a Custodial Supervision Order (“CSO”), and that he be held at the Thomas Embling Hospital, a high security psychiatric hospital. Admission to Thomas Embling would provide LM with the opportunity for longer term rehabilitation, as well as treatment specifically aimed at reducing his risk of future violence.
Both parties agreed that, in the circumstances, a CSO would be the appropriate outcome. The Act requires that, in the case of murder, the nominal term of such a supervision order be 25 years.
Even if a court concludes that a CSO should be made, the Act does not allow the court to make such an order unless it has a certificate of available services under s 47 of the Act. Unfortunately, Dr Roberts’ report was accompanied by a letter from Ms Melissa Iskov, corporate counsel at Thomas Embling, which explained that there were no beds available at the hospital. Ms Iskov advised that all of the beds available for forensic patients were currently occupied, and there was a list of 20 people waiting for one of those beds. Accordingly, the s 47 certificate declared that no facilities or services were available for LM if he was placed on a CSO.
At that time, Forensicare estimated that a bed for LM would be available in six months’ time, but that in the interim he would have to continue to receive treatment for his condition within the prison environment. Given the indication that a bed was likely to become available in February 2018, at a hearing on 9 August 2017 I adjourned the matter until 12 February 2018. I also ordered that if a place at Thomas Embling became available earlier, the matter should be brought back to court earlier.
Unfortunately, no bed was available for LM in February 2018. Although he had moved up the waiting list by that time, Forensicare advised that a bed was not likely to be available for LM until 21 August 2018. Accordingly, the matter was adjourned by consent on the papers until August.
A suitable s 47 certificate of available services has now been received, which enables the court to make final orders.
Judges of this court have repeatedly expressed frustration at the lack of available beds in a secure psychiatric hospital for offenders such as LM, who have committed offences whilst suffering from serious mental illness. Although funding has now been provided for 18 additional beds to be built at Thomas Embling, that is of little comfort to the families and loved ones of victims and offenders in a case such as this one (which has been repeatedly held up by the existing shortage of beds).
I have no doubt that the delays caused by the shortage of beds has only added to the anguish and grief of Ms Lynch’s family and friends. In their reports to the court, Ms Lynch’s mother and younger sister describe a kind, gentle and trusting woman, who was greatly loved by her extended family. Her family miss her dearly, and are suffering greatly in different ways from her death. They struggle to make sense of such a senseless killing.
I will order that:
(a) A custodial supervision order is made pursuant to s 26 of the Act.
(b) LM is committed to the custody of the Victorian Institute of Forensic Mental Health, to remain at the Thomas Embling Hospital.
(c) Pursuant to s 28 of the Act, the nominal term of the supervision order is 25 years from 21 February 2016, which includes the declared period of 911 days (excluding today) during which LM has been held in custody.
(d) Pursuant to s 75 of the Act, until further order, no person shall publish or cause to be published or broadcast by means of radio, television or other means any matter which might directly or indirectly enable identification of LM.
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