R v Blow
[2017] VSC 767
•13 December 2017
| Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0120
Between:
| THE QUEEN | |
| and | |
| ANDREW BLOW | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2017 | |
DATE OF JUDGMENT: | 13 December 2017 | |
CASE MAY BE CITED AS: | R v Blow | |
MEDIUM NEUTRAL CITATION: | [2017] VSC 767 | |
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CRIMINAL LAW – Murder – Accused stabbed father repeatedly, killing him – Accused acted on delusions when he stabbed deceased – Defence of mental impairment – Consent mental impairment hearing before judge alone – Two psychiatrists opined accused could not reason with moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong – Verdict of not guilty by reason of mental impairment directed – Accused declared liable to supervision – Matter adjourned so that necessary further examination, report and certificate of available services might be obtained – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 41 & 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Borg | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S. Gardner | Stuthridge Legal |
HIS HONOUR:
Background facts
At about 2:30 p.m. on Saturday 5 November 2016, Andrew Blow (“the accused”) drove to the home of his father Douglas Andrew Blow (“the deceased”) in Long Gully, a suburb of Bendigo. The accused had with him two friends – Brendan Walker and Samuel Gledhill.
The accused parked some distance away from the front of the house, got out of the car and walked to the front gate, where he waited for about a minute. During that time, he paced around the front of the property before he walked through the front gate and entered the house through the front door. The accused had with him a small kitchen knife, which he had obtained from his own home.
Mr Walker and Mr Gledhill, who knew nothing of what was about to occur, waited in the car.
After entering the house, the accused met his father and used the knife to stab him repeatedly to the upper body, head and neck. The deceased fell to the ground in the entry area of the house. The injuries inflicted were fatal.
The accused left the house, returned to his vehicle and drove to his own home in Kangaroo Flat. Mr Gledhill and Mr Walker helped him to burn his clothes and clean his car. He returned the knife used to stab his father to the knife block in his kitchen. The accused then drove Mr Gledhill and Mr Walker to Melbourne and elsewhere. He returned to the Eaglehawk area and slept in his car for two nights.
The deceased’s other children had been trying to contact him (i.e. the deceased) without success. At around 6:40 p.m. on Sunday 6 November 2016, four of the deceased’s (seven) children attended at his home. They were Laura, Hannah, Abbey and Matthew Blow. They found their father in the entry area of the house. He was dead. They contacted the police, who attended a short time later.
At about 12:09 p.m. the next day, on Monday 7 November 2016, the police went to the accused’s home to notify him that his father had died. The accused then admitted that he had stabbed his father and caused his death. He was arrested. When interviewed formally, he provided a detailed account of how he killed his father.
The accused was charged with murder. He has remained in custody ever since, either in prison or at Thomas Embling Hospital. He is currently housed at Port Phillip Prison.
The accused has had a history of serious mental illness, namely schizophrenia, since at least the age of seventeen. He also had a history of using illicit drugs, including ‘ice’ and cannabis.
Consent mental impairment hearing
This morning, the matter came before me as what is sometimes called a ‘consent mental impairment’ hearing. Usually, in this State, unless there is a plea of guilty, whether a person is guilty or not guilty of murder is determined by a jury. However, pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”), if a person is charged with an indictable offence (such as murder) and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence would establish the defence of mental impairment,[1] the trial judge may hear that evidence and, if satisfied that it does establish the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded.[2]
[1]See s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[2]See s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
When arraigned on the charge of murder this morning, the accused pleaded not guilty by reason of mental impairment.
Ms Borg, who appeared on behalf of the Director of Public Prosecutions (“the Director”), and Mr Gardner, who appeared for the accused, advised that it was agreed between the parties that the proposed evidence, including the psychiatric evidence, would establish that the accused had available to him a defence of mental impairment. This was because the evidence would show that, at the time of the killing, as a result of the effects of his psychiatric illness, the accused did not know the conduct was wrong – that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.[3]
[3]See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
That evidence was then led. In particular, without objection, Ms Borg read aloud and tendered a summary of prosecution opening, which sets out in considerable detail the circumstances surrounding the killing of the deceased. The summary of background facts I have just outlined, and which is not disputed, was taken mostly from that document.
Further, I also received in evidence reports from two eminent forensic psychiatrists, Dr Danny Sullivan and Dr Lester Walton. Both psychiatrists examined the accused. I also heard viva voce evidence from Dr Sullivan.
In summary, Dr Sullivan provided the following opinion in his report:[4]
[62] I have considered the availability of a mental impairment defence as set out in s 20 of the [Act]. At the time of alleged offence, Mr Blow was psychotic, holding persecutory delusional beliefs and experiencing auditory hallucinations. He had disengaged from psychiatric follow-up and was not taking recommended medication. His mental state was also likely exacerbated by amphetamine use although this occurred on a background of established mental illness. The presence of relevant symptoms was apparent from witness statements both before and proximate to the alleged offence, and was clearly documented by arresting police and mental health clinicians subsequently.
[63] He had an established delusional preoccupation with his father as orchestrating his torment, raping him or harming others. This delusional belief and the possible occurrence of auditory hallucinations motivated his fatal assault on his father. I consider that he knew the nature and quality of his conduct. I do not believe however that he was able to reason with a moderate degree of sense and composure about the wrongfulness of his conduct.
[64] On that basis, I consider that a mental impairment defence is available to Mr Blow.
[4]Report of Dr Danny Sullivan (dated 29 August 2017) at p 11[62]-[64].
In his viva voce evidence, Dr Sullivan confirmed that opinion. He also expressed agreement with the opinion that Dr Walton had provided in his report.
In that report, Dr Walton opined as follows:[5]
[5]Report of Dr Lester Walton (dated 6 June 2017) at pp 4-5.
1. Andrew Blow is afflicted by chronic paranoid schizophrenia. Like many persons, his condition waxed and waned over time, partly due to his being less than faithfully compliant with treatment and, at least in the past, his indulging in abuse of cannabis and methamphetamine.
…
Substance abuse seems not to be a current feature.
2. Mr Blow is suffering the commonest cause of formal legal mental impairment. It seems that his belief that his father had sexually abused him and his siblings was an entrenched delusion, the intensity of which would vary depending upon how well or unwell he was. It would seem highly likely that Mr Blow had lapsed back into acute psychosis preceding the incident. Not only was he seized of the notion that his father was a paedophile but he was also being encouraged by hallucinatory voices to kill himself and his father. Relying upon that information, it would seem that Mr Blow has a straightforward defence of mental impairment on the second leg of the test.
Potential negating factors are the fact that Mr Blow is not able to give a description of his being instructed towards the killing by hallucinatory voices precisely at the time it occurred and, relatively soon after the incident, it is apparent that he had at least some appreciation of wrongdoing. I have given those factors due consideration and my opinion is that, on the balance of probabilities, Mr Blow was meaningfully deprived of the capacity [properly to] reason with a moderate degree of sense and composure as to the wrongfulness of his act due to his then acute schizophrenia.
Having considered that evidence, which is unchallenged, while I am satisfied, beyond reasonable doubt, that Andrew Blow killed his father and meant to do so, I am also satisfied, on the balance of probabilities, that the defence of mental impairment was operative at the time of the killing.
Accordingly, I find the accused not guilty of murder by reason of mental impairment.
Since there is no dispute that I should declare the accused be liable to supervision, I shall make such a declaration shortly.
I will also need to make some consequential orders and directions so that the matter may ultimately come back to me to determine the appropriate disposition.
While I do not prejudge the matter, that disposition, in cases like the present, is almost invariably a custodial supervision order. Such an order would mean that the accused would be housed at Thomas Embling Hospital, which is a secure facility, so that he may receive the appropriate treatment for his illness. While such orders are indefinite and have a nominal period of 25 years, the period actually spent in the hospital would depend upon the accused’s progress. In any event, these are matters to be discussed upon the return of the matter.
Orders
Accordingly, I make the following orders, directions and declarations:
1)Pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”), the Court directs that a verdict of not guilty of murder because of mental impairment be recorded in respect of the charge, on Indictment No. G13060087, that Andrew Blow (“the accused”) murdered Douglas Andrew Blow at Long Gully in Victoria on 5 November 2016.
2)Pursuant to s 23(a) of the Act, the Court declares that the accused is liable to supervision under Part 5 of the Act.
3)Pursuant to s 24(1)(c) of the Act, the Court orders that, pending the making of a supervision order under s 26 of the Act, the accused be remanded in custody in a prison, and is to appear in person on 9 February 2018 at 9:30 a.m. in this Court.
4)Pursuant to s 47 of the Act, the Court directs the Secretary to the Department of Health and Human Services, on or before 9 February 2018, to provide the Court with a certificate of available services in respect of this matter.
5)Pursuant to s 41 of the Act, the Court directs the Secretary to the Department of Justice and Regulation to arrange to have prepared and filed with the Court, on or before 9 February 2018, a report, prepared by a registered medical practitioner or registered psychologist, on the mental condition of the accused, such report to contain:
a)a diagnosis and prognosis of the condition or an outline of the accused’s behavioural problems;
b)the accused’s response to treatment, therapy or counselling (if any); and
c)a suggested treatment or other plan for managing the condition.
6)The matter is adjourned to 9 February 2018 at 9:30 a.m.
Those orders will be signed and distributed to the parties.
Thank you to counsel and your instructors for your assistance, and also to those who have attended.
Please adjourn the Court.
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