Director of Public Prosecutions v O'Neill
[2021] VSC 756
•18 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0163
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XOCHIL QUETZAL O’NEILL |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 May, 4 August, 16 November 2021 |
DATE OF JUDGMENT: | 18 November 2021 |
CASE MAY BE CITED AS: | DPP v O’Neill |
MEDIUM NEUTRAL CITATION: | [2021] VSC 756 |
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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 20, 21, 26, 27, 28, 40, 41, and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Gibson QC | Ms A Hogan, Solicitor for Public Prosecutions |
| For Mr O’Neill | Mr D Grace QC | Giorgianni & Liang Lawyers |
HER HONOUR:
On 28 January 2020, Xochil O’Neill brutally attacked and killed Maud Steenbeek at her home in Heidelberg West. Mr O’Neill and Ms Steenbeek lived on opposite sides of an intersection, but they did not know each other.
Since 2010, Mr O’Neill had been receiving treatment at The Melbourne Clinic, a private mental health facility, for a major depressive disorder. In the weeks leading up to the offence, he had been in a manic state, and exhibiting obsessive behaviour.
On 28 January, Mr O’Neill was at home. His housemates noticed he was behaving oddly; he was rambling and rummaging through his room. He was pale and sweaty. He was crying and seemed scared. He was talking about magic, saying “You don’t see what I see”, and laughing like someone had told a joke. One of his housemates, Matilda Davis, thought he was having a manic episode. Ms Davis stayed with Mr O’Neill, and gave him two Valium tablets during the afternoon.
Around 5pm, Mr O’Neill said he was going for a walk to his girlfriend’s house. He left the house, carrying a mirror and a piece of rope.
About 5 minutes later, Ms Davis saw Mr O’Neill outside the house, on the nature strip. He no longer had the items he had taken with him, and was trying to climb into a stormwater drain.
Ms Davis tried to persuade Mr O’Neill to return to the house, but he started running up and down the street, waving his arms around, smiling, and acting like a child. Just before 7pm, Ms Davis called the Austin Hospital psychiatric team, and left a message regarding Mr O’Neill’s behaviour.
Around 7:30pm, a local resident, Leon Teague, saw Mr O’Neill crouched down with a piece of poly plastic over his head, scribbling in the dirt, and rolling around on the ground. Mr Teague asked Mr O’Neill if he had seen Mr Teague’s son, who he was looking for. Mr O’Neill said he had, and led Mr Teague to a house near Ms Steenbeek’s. There he threw a child’s bike over a security fence into a construction site, and tried to pick up a concrete fence bracket.
Another neighbour, Abdirahman Ali, heard the noise and went outside. He saw Mr O’Neill rolling around on the ground, talking to himself. Mr O’Neill became aggressive whenever someone went near him to assist. Mr O’Neill was foaming from the mouth, and saying he had been poisoned and needed to get home. Mr Ali suggested calling for assistance, or calling the police or an ambulance. Mr O’Neill refused.
At 7:34pm, Mr Ali called 000, requesting police and an ambulance. He reported that Mr O’Neill was lying in his driveway, speaking foul language, and talking about religion. He thought Mr O’Neill was drug or alcohol-affected.
Mr O’Neill started touching the exhaust pipe of a car in the driveway, spitting into it and towards Mr Ali. Mr Ali and his father tried to help Mr O’Neill off the ground, and give him water, but Mr O’Neill grabbed a small piece of carpet off the ground and ran away with it down the road. Mr O’Neill then stopped at an electrical pole, and started pulling parts off it.
At 7:42pm, Mr Ali called 000 again. While waiting for emergency services to attend, Mr Ali went inside for a few minutes. When he went back outside, he could no longer see Mr O’Neill.
While this commotion had been going on outside, Ms Steenbeek had been at home, on a Skype call to her brother, Sjoerd, in the Netherlands.
Around 8pm, Sjoerd heard her say “Hold on”, “Go away”, and “Get the fuck out”. He thought it sounded like she had been surprised by something or someone coming into her house unexpectedly. The call then dropped out.
Mr O’Neill had entered Ms Steenbeek’s house by the back door. He picked up a Samoan wooden paddle from inside the house, and confronted Ms Steenbeek with it. She went to the bedroom at the front of the house, to protect herself. Mr O’Neill followed and struck Ms Steenbeek with the paddle numerous times to the head and upper body, causing significant blunt force trauma.
Numerous residents in the street heard a woman screaming and yelling, and called 000.
Sjoerd tried, unsuccessfully, to call Ms Steenbeek on her mobile. He then called her son, Luke. Luke called his brother, Adam, to return home and check on Ms Steenbeek as he was closer. Sjoerd told both Luke and Adam to be careful, as there was a man in the house.
Adam drove straight home. He went to the bedroom window at the front of the house, and saw a man inside. He told Mr O’Neill to leave and that police were coming. Mr O’Neill appeared to Adam to be psychotic or on drugs; he was ranting about God.
Adam went to the back of the house. He released his dog from the shed, and they went inside the house. Mr O’Neill ran at Adam, and tried to punch him and hit him with the wooden paddle. Adam struck Mr O’Neill with his fists, and ordered his dog to attack. The dog latched onto Mr O’Neill’s head and dragged him into the backyard. Mr O’Neill continued to fight back and rant about God. Adam picked up the wooden paddle and struck Mr O’Neill several times, incapacitating him.
Adam then went to check on his mother. He found her in the corner of the front bedroom; she was unresponsive.
By the time police arrived at Ms Steenbeek’s house at 8:13pm, she had died from her head injuries. Mr O’Neill was assessed by paramedics, before being taken away for medical assistance; he later underwent emergency surgery for injuries to his brain and skull. Adam was also taken to hospital, for treatment for injuries to his hand and jaw.
On 19 February 2020, Mr O’Neill was transferred to the Royal Talbot Rehabilitation Centre for recovery and rehabilitation.
On 24 March 2020, he was considered suitable for transfer to a Corrections facility, and was arrested and charged with murder.
The defence did not dispute that Mr O’Neill performed the acts alleged by the prosecution, but said that he was mentally impaired at the time of offending.
Before I consider the issues relating to Mr O’Neill’s mental state, I want to say something about Ms Steenbeek and her family. Maude Steenbeek was born in Holland in 1959, the fourth of five children. After leaving school, she travelled widely and studied social welfare. In her early 20s, she met an Australian man, who she ended up marrying after moving to Australia with him. She and her husband had two sons, Luke and Adam. They divorced in the early 2000s.
At the time of her death, she was working as a yoga and Pilates instructor. Only three months before her death, she was diagnosed with multiple myeloma cancer, which had spread widely through her body. She had experienced several rib breaks, and her bones were becoming weak. She began chemotherapy treatment in January 2020.
Ms Steenbeek was described as a caring and wise person, who was creative and strong in body and mind. She believed strongly in social justice and women’s rights. She cared deeply for her two sons, and was very close to her remaining family in Holland.
The events of 28 January 2020 must have been particularly distressing for her brother and sons, as they tried to do what they could to help her. Adam’s efforts in trying to assist his mother, by confronting the stranger who was attacking her, were particularly brave.
On 24 May 2021, a hearing was held to determine the issue of Mr O’Neill’s mental impairment. Because 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 evidence to be heard by a judge alone.
I was provided with the following reports:
(a) Psychiatric report of Dr Lester Walton, dated 26 August 2020;
(b) Addendum psychiatric report of Dr Lester Walton, dated 2 September 2020;
(c) Psychiatric report of Dr Rajan Darjee, dated 29 December 2020; and
(d) Joint psychiatric report by Dr Rajan Darjee and Dr Lester Walton, dated 19 January 2021.
Drs Walton and Darjee also gave oral evidence at the hearing before me on 24 May 2021.
I was also provided with a letter from Dr Wendy Castle, consultant physician in rehabilitation medicine, dated 19 April 2021, regarding the brain injury which Mr O’Neill suffered as a result of Adam’s actions.
Mr O’Neill is now 30 years old; he was 28 at the time of these events.
Mr O’Neill was in the care of his mother for the first five years of his life, until he was placed into his grandfather’s custody due to his mother’s inability to care for him. Mr O’Neill never met his father, who died several years ago.
Mr O’Neill was well-cared for by his grandfather, and finished his secondary schooling up to year 12. He worked in data processing for a short period of time, but has otherwise been unemployed since leaving school.
There is a history of serious mental illness in his mother’s family. Mr O’Neill’s mother suffers from drug-induced psychosis, and both his maternal grandmother and uncle are believed to suffer from psychotic illnesses. There is also some suggestion that Mr O’Neill’s great grandmother suffered from psychiatric issues.
Mr O’Neill’s first recorded experience of mental illness was in 2010, when he was referred to a psychologist after presenting with trouble sleeping, low mood, and post-traumatic stress after witnessing a car crash that killed two people.
In late 2010, he was admitted to the emergency department at St Vincent’s Hospital, after he called police saying he felt suicidal. He attributed that to a relationship breakup, the ongoing impact of witnessing the car accident, and his mother’s neglect and the conflict between them. He was also distressed after reading some court documents describing his mother’s history of drug use and prostitution. Mr O’Neill was subsequently admitted as an in-patient to The Melbourne Clinic.
After being discharged, Mr O’Neill continued to be treated as an out-patient at the clinic throughout 2011. He was not prescribed any medication at that time.
Mr O’Neill was admitted to The Melbourne Clinic on a voluntary basis 10 times between 2010 and 2019, for periods ranging from four days to three weeks. On most occasions, he was described as suffering from depression and anxiety, with some suicidal ideation, often in the context of family-related stressors. On two occasions in 2018 and 2019, Mr O’Neill presented with manic or hypomanic symptoms. However, there was no evidence of psychotic symptoms.
Mr O’Neill’s girlfriend described his mental health as “complex”, and Mr O’Neill as socially anxious and subject to extreme mood changes. According to her, at times he was so depressed he would sleep for an entire week without eating, and she would have to bring him food. At other times, he was frenzied and frantic, and could not stop thinking. She described episodes characterised by spikes of energy that occurred about once every six months, where Mr O’Neill would physically shake, speak rapidly and tremulously, and could barely stay seated.
She also saw periods of obsession and fixation. For example, several years before the offending, Mr O’Neill became obsessed with lemons; he ate all the lemons off a tree in one sitting. Similarly, in 2018 or 2019, he developed an obsession with iced tea, which caused him to excessively research and think about it, to the point where he could not sleep. On one occasion, Mr O’Neill left the house at 2:00am in an attempt to buy iced tea; his girlfriend was unable to locate or contact him for two days. After that, she convinced Mr O’Neill to re-admit himself to The Melbourne Clinic.
Around Christmas 2019, Mr O’Neill’s mother became psychotic. A week before the offence, she suffered a drug-induced psychosis. Mr O’Neill visited her at his grandfather’s request, and she told him her boyfriend was planting spiders’ eggs in her hair and brain, and secretly entering her unit in an attempt to poison her. Mr O’Neill found this very distressing, and his own behaviour became more manic.
Around that time, Mr O’Neill appeared anxious and highly agitated. He developed an obsession with waxing leather, and did it to the point of blistering his fingers. He then started waxing his own body, causing bleeding sores on his face, arms and legs. Although that behaviour decreased in early January, Mr O’Neill continued to wax objects, ruining them in the process.
The last time Mr O’Neill saw his psychiatrist was five days before the offence. On that occasion, he reported feeling well and more resilient, and reported positively about his sleep and appetite. That accorded with the psychiatrist’s observations at that time. Although his mother’s psychosis and drug use were ongoing stressors, Mr O’Neill was noted as being neither depressed or hypomanic. He was prescribed medication for anxiety and depression.
Notwithstanding what he had told his psychiatrist, Mr O’Neill’s girlfriend said that Mr O’Neill’s mental health had actually worsened around that time.
A couple of nights before the offence, Mr O’Neill told his girlfriend he felt like he was living inside a dead body. Mr O’Neill did not acknowledge that he was unwell, and did not inform his psychiatrist.
Around the same time, Mr O’Neill’s girlfriend saw what she believed to be a self-inflicted burn mark over a heart-shaped tattoo on his hand. One of his housemates also noticed the burn, and said Mr O’Neill had developed an obsession and fear of love-heart shapes.
Then, on the day of the offence, witnesses saw Mr O’Neill engaging in the bizarre behaviour described earlier in these reasons.
As a result of the brain injury he incurred during the incident, Mr O’Neill could not recall what he did to Ms Steenbeek, or in the period of time leading up to it.
Mr O’Neill’s mental state was assessed by several psychiatrists after the offence. In early February 2020, a psychiatrist reported that he was agitated, anxious, depressed, and experiencing flashbacks and nightmares that would cause him to wake up distressed and sweating. When he was reviewed in March, he reported still experiencing anxiety, problems sleeping, and hyperactivity.
Mr O’Neill was reviewed by a psychiatrist two more times in mid-2020. He presented with anxiety, low mood, and fleeting suicidal ideation, but did not show overt symptoms of depression or psychosis. He was prescribed anti-psychotic medication. However, this was not to treat psychosis, it was to address the agitation commonly experienced by head-injured individuals.
Mr O’Neill has not demonstrated any psychotic symptoms or bizarre behaviour during his hospitalisation, or since his imprisonment.
Nonetheless, Dr Walton and Dr Darjee agreed that Mr O’Neill was experiencing psychotic symptoms at the time of the offence.
According to Dr Darjee, the mental condition that affected Mr O’Neill at the time of the offence was either an acute manic episode with psychotic symptoms, or an acute and transient polymorphic psychotic disorder. Regardless of the precise diagnosis, Dr Darjee’s evidence was that Mr O’Neill may not have known what he was doing, and certainly did not know that what he was doing was wrong.
In his August 2020 report, Dr Walton was not able to find any evidence that Mr O’Neill had experienced a psychotic breakdown, largely due to Mr O’Neill’s inability to give an account of the offence or his state of mind at the time. However, after later considering the various witness statements describing Mr O’Neill’s conduct, Dr Walton ultimately formed the opinion that Mr O’Neill could not have reasoned with a moderate degree of sense and composure as to the wrongfulness of his acts.
In their joint psychiatric report dated 19 January 2021, Dr Darjee and Dr Walton concluded that Mr O’Neill was experiencing an acute psychosis when he attacked Ms Steenbeek. Whether that was the more likely acute and transient polymorphic psychotic disorder, or the less likely acute manic episode, was forensically irrelevant to the defence of mental impairment, because both conditions would be recognised as a qualifying psychiatric illness. The opinion of both experts was that Mr O’Neill’s mental illness at the time of the offence meant that he could not reason with a moderate degree of sense and composure as to the wrongfulness of his acts.
At the conclusion of the hearing on 24 May 2021, I was satisfied that the evidence established the defence of mental impairment under s 20(1)(b) of the Act: that Mr O’Neill 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 Mr O’Neill liable to supervision pursuant to Part 5 of the Act. Mr O’Neill was remanded in custody in prison, pending the preparation of a further report as required by s 41(1) of the Act. The proceeding was adjourned to 4 August 2021.
A s 41 report was provided by Dr Sandeep Kosaraju, a forensic psychiatrist at the Victorian Institute of Forensic Mental Health, dated 26 July 2021. The report addressed Mr O’Neill’s current mental health state and treatment.
Mr O’Neill has been compliant with his current medication, but still continues to experience periods of depression. Those periods are less intense, and he does not experience post-traumatic symptoms or suicidal intentions. Mr O’Neill has no ongoing psychotic symptoms, or features of manic or hypomanic episodes. He appears to have some understanding of his condition, identifies his mental illness as major depression and generalised anxiety disorder, and appears to have a fair understanding of the need for treatment.
The historical risk factors identified for Mr O’Neill were the presence of past violence, difficulty maintaining employment in the long term, the presence of a major mental disorder, substance misuse, and past traumatic experiences.
His present risk factors are his ongoing anxiety, depression and cognitive deficits. Furthermore, while Mr O’Neill does not currently show suicidal ideation, psychotic or manic symptoms, there is still uncertainty around his ultimate diagnosis and treatment needs. Dr Kosaraju said that there is a possibility of relapse without intensive monitoring and supervision. On the other hand, Mr O’Neill does not present as inherently antisocial, and does have some understanding of his illness and recognition of his need for treatment.
Mr O’Neill’s future risk factors relate to the lack of clarity around his care and supervision needs, including his living situation, lack of professional future service plans to manage risk, his ability to cope and handle stress, unaddressed childhood trauma, and the possibility that he may regain memory of the offence, which could acutely relapse his illness.
Dr Kosaraju placed Mr O’Neill at a significantly increased risk of future violence, requiring a further assessment and treatment in a custodial setting at the Thomas Embling Hospital, under a custodial supervision order.
A s 47 certificate of available services was provided by Forensicare, dated 27 July 2021; it said that there were no beds available for Mr O’Neill at Thomas Embling Hospital at that time. Accordingly, the matter was adjourned to 16 November 2021.
A further s 47 certificate of available services was provided by Forensicare on 10 November 2021. That certificate said that the required facilities and services would be available to Mr O’Neill on 16 November 2021. Accordingly, I made the following final orders on that date:
(a) A custodial supervision order is made pursuant to s 26 of the Act.
(b) Mr O’Neill 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 28 January 2020, which includes the declared period of 658 days (excluding today) during which Mr O’Neill has been held in custody.
(d) Pursuant to s 27 of the Act, the matter will be brought back for review no later than 16 November 2024.
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