Director of Public Prosecutions v Mullah (a pseudonym)
[2023] VSC 512
•29 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0312
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDUL MULLAH[1] |
[1]A pseudonym has been used to avoid identifying the offender, pursuant to a suppression order made on 29 August 2023.
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 July, 7 September 2022, 7 March, 29 August 2023 |
DATE OF RULING: | 29 August 2023 |
CASE MAY BE CITED AS: | DPP v Mullah (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 512 |
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CRIMINAL LAW – Murder – Attempted murder – Intentionally causing injury – 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 20, 21, 26, 28, 41 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Argiropoulos | Ms A Hogan, Solicitor for Public Prosecutions |
| For the offender | Mr M Stanton Mr J Manning | Leanne Warren & Associates |
HER HONOUR:
In August 2019, the offender killed Isaia Benedito, and attacked Michael Sheck and Tshepo Moeng.
At the time of the offences, the offender was homeless. He was sleeping in an abandoned, four bedroom unit in Dandenong, which was also being occupied by other homeless people.
Tshepo Moeng was temporarily living in one of the bedrooms in the unit. On 21 August 2019, he went to sleep in his room around 11pm. He woke less than an hour later when he heard the offender enter his bedroom.
Without warning, the offender stabbed Mr Moeng in the left hip area. Mr Moeng put his hands up to show that he was not armed and did not pose any threat. The offender was mostly speaking in his native language, but said in English words to the effect of “I’m not scared”, “I wanna go to gaol” and “I wanna die”. The offender had two knives in his hand and a small torch. He took Mr Moeng’s mobile phone and left the room.
The offender returned to Mr Moeng’s room for a few minutes, mumbling something about when he would return to gaol, then left again.
Mr Moeng left his room to try to get his phone back. Once outside the unit, the offender asked him “What are you doing, haven’t you had enough?”. Mr Moeng said he needed his phone to call an ambulance. The offender threw Mr Moeng’s phone onto the ground, breaking it. The offender then punched Mr Moeng several times, while Mr Moeng begged him to stop.
Mr Moeng managed to get out of the building and onto the street. Some people passing by protected him and told the offender to calm down.
Emergency services attended and Mr Moeng was taken to hospital. He had three stab wounds in his thigh, and one small wound to his knee.
Around 2am, police officers saw the offender walking along the street near the unit. He was holding a metal pole and appeared erratic. The offender repeatedly said that he had been using synthetic cannabis.
Police returned the next day and arrested the offender. During his interview, he denied stabbing Mr Moeng. He was released later that day and returned to the unit.
Mr Sheck was also homeless and staying at the unit. His friend, Mr Benedito, was visiting him that evening. They spent the evening drinking and smoking in Mr Sheck’s room with two other friends.
Around 12:30am, the offender suddenly came into Mr Sheck’s room and stabbed Mr Benedito repeatedly in the back. The offender had two knives, and kept stabbing Mr Benedito until he collapsed. Mr Sheck tried to intervene and was stabbed to the side of his body. Mr Sheck managed to force the offender out of the room using a mop handle.
A few seconds later, the offender came back into the room. This time he had one knife and a golf club. Mr Sheck tried to protect himself and his friends using the mop handle. The offender hit him with the golf club before he was again forced out of the room. The offender left the building and ran away.
At 12:42am, Mr Sheck called 000. Emergency services attended, but Mr Benedito could not be resuscitated; he died at the scene from multiple stab injuries.
Mr Sheck was taken to hospital for emergency treatment. The stab wound had caused a collapsed lung. He remained in hospital for about 10 days.
Police found the offender on a nearby street around 1:15am. He was carrying a television, behaving very erratically, and talking about cows and god. He was arrested and informally interviewed, but assessed as unfit for formal interview. He was interviewed briefly again later that day, then charged with the murder of Mr Benedito and the attempted murder of Mr Sheck. He was remanded in custody.
The defence did not dispute that the offender performed the acts alleged by the prosecution, but said that he was mentally impaired at the time of offending. They relied upon a report prepared by Dr Rajan Darjee, dated 12 January 2022, in support of that position.
The prosecution subsequently arranged for the offender to be assessed by Dr Douglas Bell. In his report dated 18 March 2022, Dr Bell came to the same conclusion as Dr Darjee, in relation to the offender’s mental impairment at the time of offending. Both doctors took the following matters into account, in coming to their conclusions.
The offender is now 42 years old. He has a history of serious mental illness, and both doctors are of the opinion that he has schizophrenia.
The offender was born overseas and has 10 siblings. When he was a baby, his father died in the civil war in the country of his birth. His mother later remarried. He describes his mother and step father as good, kind people. When he was about eight, his family fled as refugees to Pakistan. He left school when he was about 13 and worked in a radio workshop and then a carpet factory. He was in a car accident and suffered a head injury when he was 19; he was in hospital for about 3 months.
The offender’s mother disappeared in Pakistan about 20 years ago; his family believes she was kidnapped and murdered. This deeply affected the offender, as he was close to her.
The offender reported that one of his brothers had a “mental disability” since birth, and is unable to speak. He said there were mental health issues on his father’s side of the family, including an uncle with schizophrenia.
Around 2005, the offender married an Australian woman and moved to Australia one year later. They had two daughters, before separating around 2013. The offender’s wife had become concerned about his behaviour and took out an intervention order against him. The offender has had no contact with his daughters for a number of years.
The offender then lived with a friend, and worked as a plumber in his friend’s business. Over the three years before this offending, the offender was homeless and unemployed.
The offender first experienced psychotic symptoms in his late teens. He started seeing someone he refers to as the “green man”, a devil-like figure who speaks to him. He recalled being taken to a doctor, who told him he had schizophrenia. He was given medication, but did not like the side effects. He saw a psychiatrist when he came to Australia and was again prescribed medication, but did not like taking it.
In 2016, the offender was admitted to Casey Hospital psychiatric acute inpatient unit with clear symptoms of psychosis. His mental health stabilised in hospital and he was discharged about 10 days later and referred back to his GP.
The offender also recalled an occasion when a friend took him to the doctor as he had tried to kill himself. The offender’s sister also took him to the GP on numerous occasions with concerns about his mental health.
The offender used methamphetamine and synthetic cannabis daily over the two or three years before this offending. He was taking those substances heavily over the days before, and on the day of, these events. He thought that people were following him and the “green man” was saying to him “You will die by the drug dealer” and “Go away from this area.”
According to Dr Darjee, in the police interview on 22 August 2019 (after the stabbing of Mr Moeng) the offender was clearly floridly and acutely psychotic. In his second interview (after the stabbing of Mr Sheck and Mr Benedito), the intensity of his disturbed mental state was even worse. The offender said that Mr Sheck and Mr Benedito had come to bash his head in while he was sleeping, and that drug dealers had set them up to attack him. He thought he had only stabbed one person.
In Dr Darjee’s opinion, the offender was very unwell at the time of the offending. In his view, the most appropriate diagnosis was schizophrenia, or perhaps schizoaffective disorder. Dr Bell provided a similar opinion and diagnosed the offender with paranoid schizophrenia.
Both Dr Darjee and Dr Bell expressed the opinion that although the offender’s drug taking worsened his mental state, his history of symptoms and their persistence since his arrest indicates that he did not commit these offences in a drug-induced psychosis.
Both experts were of the view that the offender did not know his conduct was wrong, in that he could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.
On 6 July 2022, a hearing was held to consider the issue of mental impairment. As both the prosecution and the defence agreed that the expert evidence established a defence of mental impairment, s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”) allowed the case to be heard by judge alone.
At the end of the hearing on 6 July 2022, I was satisfied that the evidence established the defence of mental impairment under s 20(1)(b) of the Act, in that the offender was suffering from a mental impairment at the time of committing the offences, 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 the offender liable to supervision under Part 5 of the Act. The offender was remanded in custody in prison, pending the preparation of the further report required by s 41(1) of the Act. The proceeding was listed for further hearing on 7 September 2022.
On 19 August 2022, Dr Shakira Kumar, of the Victorian Institute of Forensic Mental Health (“Forensicare”), provided a s 41 report addressing the offender’s current mental health state and treatment.
At that time, the offender was still experiencing psychotic symptoms. He lacked insight into his diagnosis of schizophrenia, but was accepting of his antipsychotic medication. He had spent time in the acute and subacute psychiatric units in prison, but at the time of the report was in a mainstream unit. He had regular phone contact with his sister, who he sees as a supportive figure.
In Dr Kumar’s opinion, the offender has several historic risk factors, including his history of traumatic experiences, violence as an adult, problems with relationships and substance use. He also had current risk factors at that time, including active symptoms of schizophrenia and limited insight into his mental disorder. His engagement with professional services was reasonable in prison, but had been tenuous when in the community. His schizophrenia has been difficult to treat and it was unclear how he might respond to increased stress, treatment options and supervision in the future.
Dr Kumar assessed the offender as having a significant risk of future violence should he be released into the community. Dr Kumar’s opinion was that the offender required admission to Thomas Embling Hospital (“TEH”) on a custodial supervision order.
A s 47 certificate of available services was provided by Forensicare, dated 24 August 2022; it said that there were no beds available for the offender at TEH at that time. Accordingly, the matter was adjourned to 7 March 2023.
On 27 February 2023, Dr Kumar provided a further s 41 report. The offender continued to experience psychotic symptoms, despite an increase in his antipsychotic medication. He had moved prisons after being assaulted by another prisoner, but remained in a mainstream unit and was working in the metalwork factory. His risk profile remained the same, and Dr Kumar continued to recommend that the offender be admitted to TEH on a custodial supervision order.
A further s 47 certificate of available services was provided by Forensicare, dated 28 February 2023. It said that there were still no beds available at TEH for the offender. Accordingly, the matter was further adjourned until 29 August 2023.
On 16 August 2023, Dr Kumar provided an updated s 41 report. It said that there had been little change in the offender’s mental health, and he continues to experience psychotic symptoms. Dr Kumar continues to recommend that the offender be admitted to TEH on a custodial supervision order.
Fortunately, the further s 47 certificate provided by Forensicare on 23 August 2023 said that the required facilities and services would be available to the offender at TEH on 29 August 2023.
Accordingly, I made the following final orders on 29 August 2023:
(a) A custodial supervision order is made pursuant to s 26 of the Act.
(b) The offender 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 23 August 2019.
(d) Pursuant to s 27 of the Act, the matter be brought back for review no later than August 2028.
(e) Pursuant to s 75(1) of the Act, until the first review date or further order, there be no publication of any information that might enable the offender to be identified.
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