Director of Public Prosecutions v Warren

[2013] VCC 2144

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00275

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE WARREN

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF INVESTIGATION:	22 August 2013
DATE OF SPECIAL HEARING:	04 October 2013
DATE OF DISPOSITION:	19 December 2013 [1]
CASE MAY BE CITED AS:	DPP v Warren
MEDIUM NEUTRAL CITATION:	[2013] VCC 2144

[1] Mr Warren was present at the Investigation and Special Hearing, and by agreement, present via video link for disposition.

REASONS FOR DISPOSITION
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Catchwords: CRIMINAL LAW – recklessly causing serious injury – offender suffering from paranoid schizophrenia – stabbing of stranger in the street – parties agreed defence of mental impairment was open – proceeding under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – unfitness to stand trial – jury finding of not guilty by reason of mental impairment – Custodial Supervision Order – nominal period of 7½ years, with review in 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr W.V Stougiannos	OPP
For the Offender	Mr D. Dann (for Investigation and Special Hearing) Ms M. Walker (for Disposition)	Melinda Walker Criminal Lawyers

HIS HONOUR: 

1On 14 September 2012, Luke Martin Warren was arrested by police and charged with recklessly causing serious injury to a lady in Ballarat.  It was accepted by the authorities that he had been and was suffering from paranoid schizophrenia, a serious mental illness.  Mr Warren was detained as an involuntary patient at the secure Thomas Embling Hospital, Fairfield, which is under the control and supervision of the Victorian Institute of Forensic Mental Health, otherwise known as Forensicare, and he has remained there to the present.

2Mr Warren was 32 at the relevant time.  He was first diagnosed with the condition of paranoid schizophrenia when he was 19 in 1999 and has been hospitalised for this condition many times since.

Circumstances of offending

3

The offending conduct can be set out very shortly.  By way of background,

Mr Warren was socially isolated, living alone at the Eureka Stockade Caravan Park, Ballarat.  Because of his mental illness he was on a disability pension.  He had last been admitted to Thomas Embling Hospital in July 2010.  He was discharged on 17 July 2010 and had had no apparent treatment or supervision since then or from that time up to the time of the incident.  Clearly he was not well supervised and apparently non-compliant with his medication.  From his point of view, and that of the community, this was a most lamentable and dangerous situation.

4On 14 September 2012, Mr Warren was in an agitated state.  At about 2.20 pm he obtained a steak knife, about 15 centimetres long, and walked into the Ballarat CBD from the caravan park.  He came up behind a 28 year old lady in a main street and he stabbed her with the knife to her neck and shoulder, causing serious injury.

5OFFENDER:  It was only one stab.

6HIS HONOUR:  He was unknown to the lady and the attack was completely unprovoked.  Mr Warren maintains he only stabbed the victim once, but I am satisfied, in light of the medical evidence and the accounts before me, that he stabbed her two times.  Mr Warren was seen - - -

7OFFENDER:  Nah, that’s absolute crap.

8HIS HONOUR:  All right.

9OFFENDER:  And it was a (indistinct).

10HIS HONOUR:  All right.  Mr Warren was seen by witnesses to be agitated and aggressive.  A short time after the stabbing he raised his hands above his head with the knife in his hand, appearing to make a victory salute.

11OFFENDER:  It was a (indistinct).

Victim impact

12HIS HONOUR:  The victim was taken to hospital where she received stitches to two wounds to her neck and shoulder and other treatment.  The knife wound to her neck narrowly missed her main - - -

13OFFENDER:  (Indistinct) that was that.  (Indistinct).

14HIS HONOUR:  - - - nervous system and was one centimetre in depth.  She complained of generalised altered sensation, and numbness to the left arm and to the left and right knees.  She was also diagnosed as having suffered from pain and shock.  There was no loss of consciousness.  She was further diagnosed with suffering from post-traumatic stress and anxiety.

15Thankfully, the victim was discharged from hospital later that evening and ultimately recovered from her physical injury.  No doubt she underwent terrible psychological trauma as a result of her experience.  I have received today a victim impact statement declared by the victim on 16 December 2013.  In it, she refers to the post-traumatic stress condition that she suffered and a lingering numbness in her left leg and up to her spine, which the experts believe may be a mental side effect of the shock experienced from the stabbing attack as, she states, there is no actual physical connection to the wounded area. She is to see a therapist shortly to deal with this particular issue.  She says, not surprisingly, that she suffered anxiety attacks every few days following the incident and that this went on for several weeks, but they have now ceased

16The victim has been left with a very sore shoulder - - -

17OFFENDER:  (Indistinct) bragging about it.

18HIS HONOUR:  - - - which she has treated with ongoing physiotherapy. This is associated with a pulled tendon.  She states that this ongoing problem is extremely inconvenient as she and her partner have a farm and that injury limits her as to what she can do.  She says that this problem to the left shoulder is continuing even now that 13 months have passed and that she experiences numbness to her left leg, which she believes to be a psychological side effect.

19She has incurred additional costs, apart from those which WorkSafe were prepared to extend, and she is concerned that these might not be covered by her employer.

Arrest, interview and legal process

20Following the incident Mr Warren went back to the caravan park and was arrested later that day. He was medically determined as not mentally well enough to be interviewed until the following afternoon. In summary, he told police he stabbed the lady to teach her a lesson, not to kill her, because he had been hearing voices of women - - -

21OFFENDER:  It wasn’t to teach her a lesson.

22HIS HONOUR:  - - - who were laughing at him and they were putting film on national television of him masturbating.  He believed that the victim was one of those women.  He said that other people were poisoning him and trying to hurt him and that he was hearing voices, some were coming out of the air-conditioning ducts.  Of course none of this was true.  Mr Warren was experiencing delusions, but sadly he believed it to be so.

23The prosecution and the defence agreed that Mr Warren was suffering from paranoid schizophrenia at the time of the stabbing and that he had a relevant mental impairment defence.  Very properly the prosecution assumed the burden of proof.

Investigation into fitness to be tried

24On 22 August 2013, a jury conducted an investigation before me which was held under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Based on uncontested evidence from Dr Cidoni, a very experienced psychiatrist, and Professor Mullen, a leading forensic psychiatrist in Australia, both of whom had examined Mr Warren, the jury returned a finding that his mental processes were disordered or impaired, such that he was unfit to be tried because he was unable to give proper instructions to his very dedicated and supportive lawyers.

Special hearing

25Based on the psychiatric evidence I was satisfied it was unlikely, indeed very clearly so, that Mr Warren would become fit to stand trial within the next 12 months. Accordingly, a special hearing was conducted before me and a different jury on 4 October 2013, which was held under Part 3 of the Act.

26Dr Cidoni gave uncontested evidence that Mr Warren's illness of paranoid schizophrenia is characterised by a belief in false events, including persecutory beliefs of being followed, being spoken about on TV and radio, and being spied on or poisoned; by oral or auditory hallucinations; and by thought disorders, disorganised behaviour and mood symptoms.  These are all problems that Mr Warren has suffered from over many years and for which he has been hospitalised and medicated in the past.

27The evidence confirmed that unfortunately Mr Warren doesn’t believe he has this illness or the problems associated with it, nor does he believe that he needs to take medication for the condition, which explains why he does not take his prescribed medication.

28In addition to the matters Mr Warren told the police about, which the experts said were symptomatic of the illness, Dr Cidoni mentioned that Mr Warren also had delusions that women and gay men, some of whom were outside his caravan, were laughing at him and that the victim had spoken to him in his sleep - - -

29OFFENDER:  (Indistinct).

30HIS HONOUR:  Then he saw her on the street the next day.  Dr Cidoni said Mr Warren was out of touch with reality and grossly disturbed.  His opinion was that although Mr Warren knew the nature and quality of what he was doing when he stabbed the victim, the mental impairment affected him to such an extent that at the time of the stabbing he did not know that what he was doing was wrong.

31The prosecution conceded that Dr Cidoni's opinions were fully supported by Professor Mullen, who was unavailable to give evidence at the special hearing.  The prosecution and the defence were agreed that Mr Warren was not guilty of the offence by reason of mental impairment and that the test set out in s.20 of the Act had been made out. 

32The jury found on the balance of probabilities that Mr Warren was not guilty of the offence by reason of mental impairment.  This was the correct, and a just, finding on the part of the jury.

33I will proceed on the basis that the jury were satisfied that Mr Warren had engaged in the conduct of stabbing the victim, recklessly causing serious injury and that he knew the nature and quality of what he was doing, but that he was suffering from a mental impairment which affected him to such an extent that at the time of the stabbing he did not know that what he was doing was wrong.

34Following that finding, pursuant to s.23(a), I declared Mr Warren liable for supervision under Part 5 and ordered that a report be provided by the appropriate person under s.41.  Pending receipt of that report and the matter returning to court, I directed that Mr Warren be detained in custody at Thomas Embling Hospital, as I then had a certificate under s.47 stating that facilities or services necessary to care for him were available at that place and it was not appropriate that he be released unconditionally or sent to prison.

The section 41 report

35

I have now received the s.41 report from Dr Carolyn Simms, consultant psychiatrist at Forensicare, dated 28 October 2013.  Dr Simms has been

Mr Warren's treating psychiatrist since July 2013.  I have taken account of all of it, but will briefly refer to some of the report.

36

The report was based on a number of interviews between the expert and

Mr Warren between July and October this year, particularly the interview specifically for the purposes of the report on 21 October last.  At that time

Mr Warren was increasingly thought disordered and described multiple persecutory delusions.  He was undergoing perceptual disturbances, his insight and judgment were poor and the expert noted that he remains adamant he does not have a psychiatric illness and does not need the treatment because he has been "framed".

37Mr Warren's background is set out very briefly.  He is the eldest of three children.  His parents and alive and well and they visit him occasionally from their farm in rural Victoria.  Mr Warren completed primary school and had some difficulties in high school.  During his early to mid-adolescence he was sociable and had a number of heterosexual relationships, one lasting for eight months.  He left school after Year 11 and trained as a motor mechanic.  He held multiple jobs, the longest being as a spray painter for two years. However, at the time of the stabbing matter, as I have noted, Mr Warren was on a disability pension, he was not working and living alone in a caravan. 

38The psychiatric history reveals that the onset of the mental illness occurred, as I have said, when Mr Warren was about 19 and it was followed by multiple admissions to psychiatric hospitals, both in Victoria and in Queensland.  The report notes that there was a tendency by Mr Warren to disengage from services and to be non-compliant with recommended treatment.  There were two previous admissions to Thomas Embling Hospital, one in 2004 and the one I mentioned in 2010.

39Mr Warren's psychiatric presentations have been characterised by multiple sexual persecutory and bizarre delusions, perceptual disturbances, substance use and persisting poor insight.  Significantly, his condition has been treatment resistant. In 2010, he did respond favourably to Clozapine, 400 milligrams daily, which resulted in a virtual resolution of his auditory hallucinations and a reduction in the intensity of his delusional beliefs. But, as I have said, it would appear there was no treatment following his discharge in 2010 and his mental state significantly deteriorated, which was compromised by his non-compliance with medication. There has been a history of substance abuse, dating back to his mid-teens. 

40Significantly, Mr Warren has an extensive criminal history.  Over 11 years between 1999, when he was 18, and 2010, when he was 29, he has been convicted or found guilty of 34 criminal offences and a further nine motor traffic matters, all arising from 15 court appearances.  Leaving aside the motor vehicle offences, many of these were for dishonesty and burglary. Relevantly, in December 2003, when he was 22, he was convicted of reckless conduct endangering life, involving the use of a motor vehicle, and gaoled for four months.  In August 2007, when he was 26, he was convicted of assault and recklessly causing injury and imprisoned for a period of four months.  In all, he has been sentenced to gaol on six occasions, five of which have involved actual prison time.  He has breached bonds, community-based order and intensive correction order on four occasions.

41Mr Warren’s last appearance was on 21 April 2010, when he was 29, at which time he was found guilty of two charges of intentionally damaging property, and sentenced to an aggregate 12 months imprisonment to be served by way of a combined custody and treatment order.

42I note that all of this offending occurred during the period of time that he was suffering from this mental illness. Significantly, he was not in trouble with the law at all before the onset of the condition.  It is impossible to avoid the conclusion that the past offending is significantly related to the presence of the mental illness.

43The report continues, that on admission to Thomas Embling Hospital following the incident, Mr Warren was found to be acutely psychotic. Since admission to the present, his psychotic symptoms have fluctuated in intensity, however,  significantly there have been no periods of remission of symptoms.  He has had a number of trials of different treatments and shown limited response to depot medications. He received a course of six treatments of Electroconvulsive Therapy, ECT, with some improvement, and his condition has responded relatively well to continuing Clozapine treatment, which resulted in attenuation of his symptoms.  However, he has complained that the Clozapine has prevented him from thinking appropriately and that it inhibits his gym work and he has refused to comply with Clozapine since 8 October last.

44His current medication regime is set out in the report and it is noted that he remains psychotic.  Unfortunately he remains unable to discuss his offence in any meaningful way. In the opinion and recommendation section, Dr Simms states,

"At this point in time Mr Warren has a very limited understanding of his index offence and the circumstances surrounding the offence.  He remains perplexed about the Court process which led to the finding of not guilty by reason of mental impairment.  He continues to believe that he was “framed” and that he had been hypnotised by his father at the time of the offence.  The nature of Mr Warren's offence was serious and the offence is clearly linked to his abnormal mental state.  Mr Warren continues to present with a florid psychosis with significant persecutory and bizarre delusions and auditory hallucinations.  He to date has had a limited response to assertive treatment.  It would be my opinion that Mr Warren would continue to pose a serious risk of violence to others, at this stage, in a less secure setting than Thomas Embling Hospital. 

Mr Warren needs in my opinion continuing treatment in a secure psychiatric facility to stabilise his mental state.  His offence specific issues will require long-term assessment, given his poor understanding and reluctance to discuss them.  This would be best achieved by a multidisciplinary team, in an evolving therapeutic alliance with him.  This type of work will need to be carried out in a secure hospital setting, with a concentrated focus on recovery and rehabilitation. 

He will also require a long-term graduated rehabilitation program towards his vocational, educational, and recreational needs.  In my opinion, such comprehensive rehabilitation needs can only be effectively met by way of a Custodial Supervision Order (CSO)".

Custodial supervision order

45Under s.26(1) of the Act, if a court declares that a person is liable to supervision, the court must make a supervision order in the respect of the person. Such an order may either commit the person to custody in an appropriate place, such as Thomas Embling, or to prison ( either course constitutes a custodial supervision order); or it may release the person on conditions decided by the court and specified in the order (a non-custodial supervision order).  A s.47 certificate is necessary.

46Under s.27, a supervision order is for an indefinite term and the court may direct that the matter be brought back to the court for review at the end of a specified period.  Under s.28,  the court must set a nominal term of supervision in accordance with a particular table. In this case the nominal term is agreed as being seven and a half years in length.

47In deciding to make a supervision order, the court must have regard to the matters set out in s.40(1) and I have done that in light of - the material before me as to the nature of Mr Warren's mental impairment, which is a serious mental illness; his resistance to treatment and medication and his history of non-compliance; the relationship between the impairment and the offending conduct, which is directly linked; and, whether Mr Warren is likely to endanger himself, another person or other people generally because of his mental impairment.  As to that last consideration, there has not been any history of self-harm, but I am satisfied that Mr Warren constitutes a serious danger to other persons in the community generally by reason of his mental impairment and that there is a need to protect people from such danger. Finally, I am satisfied there are adequate resources available for Mr Warren's treatment and support at Thomas Embling Hospital

48In view of my conclusions and the joint submission of the parties, it is not an appropriate case to consider whether there are adequate resources available for the treatment and support of Mr Warren in the community, although that will be the long-term goal of the professionals who will be looking after him.

49The s.47 certificate I have received makes clear that there are available facilities and services at Thomas Embling Hospital which are appropriate to Mr Warren's needs, were he to be placed on a custodial supervision order.  That treatment would comprise inpatient services at that place.  It is recommended by the authorised psychiatrist from Forensicare (who signed the certificate) that Mr Warren be under the supervision of Forensicare. The chief executive officer has also signed confirming that the appropriate services are available.

50The parties are agreed that the appropriate order in this case is a custodial supervision order for detention at Thomas Embling Hospital, the order to date from 14 September 2012. 

51Based on the s.41 report and the evidence at the special hearing, I am satisfied that Mr Warren constitutes a continuing serious danger to the community and that a custodial supervision order is the only appropriate order, and that he should be directed to be detained at Thomas Embling Hospital.  It is not at all appropriate at the moment that he be released unconditionally into the community.

Orders

52Accordingly, I make the following formal orders.  Mr Warren is to be committed to the custody of the Victorian Institute of Forensic Mental Health on a Custodial Supervision Order pursuant to s.26 of the Act. The nominal term of supervision is seven and a half years, which is taken to have commenced on 14 September 2012. I direct that pursuant to ss.27(2) and 41(3) of the Act that the matter be returned to court for review in 12 months time, dating from today. 

53I will also make the forensic sample order which is sought by the prosecution and not opposed by counsel for Mr Warren. Having considered the seriousness of the circumstances of the forensic sample offence, namely recklessly causing serious injury, I am satisfied that in all the circumstances the making of the order is justified because of the seriousness of the circumstances of the offending, the prior convictions of the respondent, the order is not opposed and the granting of the order is in the public interest. Accordingly, pursuant to s.464ZFAAA(2) of the Crimes Act 1958, Luke Martin Warren is ordered to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30A of Part 3 of the Crimes Act until a sufficient sample is obtained for placement on the database. 

54I should inform you, Mr Warren, that having made that order, a member of the Police Force may use reasonable force to enable the forensic procedure to be conducted, but it is a simple exercise of putting a small swab on the inside of your cheek, it will not cause you any discomfort or pain and it will take a very, very short period of time.

55I will sign the order that has been provided.  Thank you, I have signed those orders, I hand them down to the prosecution.  Obviously copies can be made available to the defence side.

56Yes, are there any other matters that need to be dealt with?

57MR STOUGIANNOS:  No, Your Honour.  You have covered every base.

58HIS HONOUR:  Yes.  From your side, Ms Walker?

59MS WALKER:  No, Your Honour.

60HIS HONOUR:  All right.  Can I then thank both of you, and Mr Dann through you, Ms Walker, for the very courteous and professional way in which you have conducted the case.  I think it has been conducted with a great degree of sensitivity and responsibility.

61MS WALKER:  Thank you, Your Honour.

62HIS HONOUR:  So thanks for your assistance.

63MS WALKER:  Thank you, sir.  I will pass that on to Mr Dann too.

64HIS HONOUR:  Yes.  Now, Ms Walker, do you wish to talk to Mr Warren, because I can then clear the court and allow you to do that with the video running, just to follow up any matters he might have, and my court officer can be available as you require, in terms of getting access.

65MS WALKER:  I would appreciate that opportunity, Your Honour.

66HIS HONOUR:  Yes, all right.

67MS WALKER:  Thank you.

68HIS HONOUR:  Thank you.  Adjourn sine die.

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