R v Cooper
[2010] VSC 384
•22 July 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0109 of 2010
| THE QUEEN |
| v |
| AMBER COOPER |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2010 | |
DATE OF SENTENCE: | 22 July 2010 | |
CASE MAY BE CITED AS: | R v Cooper | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 384 | |
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CRIMINAL LAW – Murder – Plea of not guilty by reason of Mental Impairment – Consent Hearing - s 21 Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 – Circumstances of offending – Diagnosis of paranoid schizophrenia - Reports furnished pursuant to s 42 of the Crimes (Mental Impairment and Unfitness to be Tried) Act – Supervision Order imposed -25 year nominal term.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Kidd | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | Victoria Legal Aid |
HIS HONOUR:
Earlier today you, Amber Cooper, pleaded not guilty before me to the murder of Antoinette Davison at Bairnsdale on 27 November 2009. The matter proceeded as a hearing pursuant to s 21(2)(b) of the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997, which I will refer to as “the Act”. That provision allows me to determine whether a person charged with an indictable offence was suffering from mental impairment at the time the conduct constituting the offence occurred. The prerequisite to hearing such a case without a jury is the agreement between the prosecution and the defence that the proposed evidence establishes the defence of mental impairment (see s 21(4) of the Act).
Mental impairment is defined in s 20(1) of the Act in these terms:
Defence of mental impairment
The defence of mental impairment is established for a person charged with an offence if at the time of engaging in the conduct constituting the offence the person was suffering from a mental impairment that had the effect that
(a) he or she did not know the nature or the quality of the conduct; or
(b) he or she did not know that 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.”
Sub‑section (2) of that section provides:
If the defence of mental impairment is established the person must be found not guilty because of mental impairment.
Section 21(4)(a) provides:
If the trial judge is satisfied that the evidence establishes the defence of mental impairment may direct that a verdict of not guilty because of mental impairment may be required
…
(b) if the trial judge is not satisfied he must direct that the charge of the offence be tried by a jury. The defence of mental impairment must be established on the balance of probabilities.
The facts surrounding the killing of Mrs Davison have been deposed to by the informant, Detective Senior Constable Leveridge. They are contained in detail in the depositional material and they may be briefly stated. They are, in précis form, the opening read by the Crown prosecutor, Mr Kidd, which became Exhibit 1. I will call heavily on his opening remarks.
At the time of this incident you were 23 years old. You are the youngest of three sisters. You were employed on a casual basis at a local service station. You lived at 22 Day Street, Bairnsdale with your de facto partner, Luke Elliott, and a friend, Gordon Humphreys.
On Friday 27 November at about 9:00am, you and Mr Elliott travelled by taxi to the main street of Bairnsdale to do some shopping. You left Mr Elliott and attended at Bulmers gift shop in Main Street, Bairnsdale. You spoke to the sales assistant and said, “I want to buy a sharp knife”. You selected a Scanpan brand knife hanging from the display and asked if this knife was sharp. The assistant removed the knife from the packaging and handed it to you. You ran your thumb over the blade and said, “That’s not sharp”. You did, however, decide to purchase the knife and paid for it. The assistant offered to gift wrap the knife, but you declined that offer. After doing some shopping, you and Mr Elliott went home, but you left shortly after getting back to your house.
Mrs Davison, the deceased, was a 65 year old widow with two adult children and a number of grandchildren. She was retired after spending a number of years as a teacher. Her sight was seriously impaired and she was classified as legally blind. She walked with the aid of a cane.
Almost every day, she would walk her two small dogs around the block from her home in Pinnock Street, Bairnsdale. She was doing that on the morning of 27 November 2009, having left home some time between 10.00am and 10.30am. At about 10.35am, as she was walking past 39 Murphy Street, you attacked her with the knife and stabbed her four times. There were two knife wounds to the neck, one to the right upper chest and one to her left hand. The injury to the left hand was consistent with her attempting to defend herself. The stab wounds to her neck severed the carotid artery, which led to her death.
Mrs Davison screamed during the attack. That was noticed by Helen Rodd, who was leaving a nearby house. She called to a friend, Peter Calvert, for assistance. They, together with Cheryl Brookes, a retired nurse, gave such assistance as they were able.
You fled and went home, a distance of about 580 metres. Your flight had been seen by another witness, Fiona McDermott.
Emergency services attended, but to no avail, and Mrs Davison died at the scene.
You later changed your clothes and went to work for a few hours. You do not appear to have told anyone what you had done.
On Monday, 30 November, the police executed a search warrant on your house in Day Street and you were arrested. A number of items were located there by police, including the jeans worn by you during the attack, which had bloodstains on the bottom of the legs. Subsequent DNA testing confirmed that Mrs Davison’s blood was present on them. The receipt from Bulmers Gift Store for a purchase to the value of $47.95 dated 27 November 2009 at 9.13am was found in your purse. It plainly related to the purchase of the knife. The Scanpan brand knife used in the attack upon Mrs Davison, together with the packaging, were located in the rubbish bin. When the knife was examined, there appeared to be blood on it. The knife’s packaging was subjected to fingerprint examination and your fingerprints were identified on the packaging.
At about 9:05 that evening, you were interviewed by the police but made no admissions to an involvement in these events.
On 1 December 2009, the witness, Fiona McDermott, to whom I have already referred, attended at the Healesville police station, where she was shown a photograph board from which she identified you. On 1 December, you were charged with the murder of Mrs Davison.
There is no known connection between you and Mrs Davison.
It emerged on the evidence before me given by Dr Zimmerman, and in accordance with the reports of Dr Zimmerman and Dr Sullivan, which were tendered into evidence, that you were then suffering from and still suffer from a major mental disorder, namely paranoid schizophrenia. Your symptoms include auditory, visual and tactile hallucinations and delusional beliefs. You have suffered from that mental illness for a number of years.
When admitted into custody, you were initially maintained in the Marmak unit, a psychiatric unit at Dame Phyllis Frost Centre, as an inpatient. Because of your disordered thought and the presence of auditory hallucinations, you were then transferred to the Thomas Embling Hospital, where you remained from 10 December until 9 April 2010, when you were transferred back to the Marmak unit where you are currently held.
The evidence of Dr Zimmerman revealed that you did have a long psychiatric history as a paranoid schizophrenic. You had been actively treated for that disorder from about February 2003. More recently, you have had inpatient admissions at hospitals in September 2008, which led to discharge in December 2008, readmission in 2009, discharge in March 2009, readmission in March 2009 and release again on 26 March 2009. At that time, you were an involuntary outpatient on a community treatment order under the Mental Health Act 1986, and you were under such order at the time of these offences.
You were receiving antipsychotic medication by injection and had received your last injection at the Bairnsdale Hospital on 26 November 2009. It appears to have been of little effect.
In the result, both Dr Zimmerman and Dr Sullivan had to consider whether or not you were suffering from a mental illness. Dr Sullivan said this at paragraph 55 of his report:
I have considered the availability of a mental impairment defence as set out in s 20 of the Crimes (Mental Impairment & Unfitness to Be Tried) Act 1997. I believe that Ms Cooper was aware of the nature and quality of her conduct as alleged, however I do not believe that she could reason about the wrongfulness of the alleged conduct with a moderate degree of sense and composure. She was labouring under delusional beliefs that she was herself under threat and that killing someone would lead to cessation of her hallucinatory torment. These delusional beliefs are directly causally associated with the offence and are a consequence of her treatment resistant psychotic illness. On this basis I would regard a mental impairment defence as available to Ms Cooper.
For her part, Dr Zimmerman said this:
Ms Cooper has a diagnosis of major mental disorder, paranoid schizophrenia. I am of the opinion that Ms Cooper was aware of the nature and quality of her conduct based on her description of the alleged offence. I am of the opinion she could not reason with a moderate degree of sense and composure about the wrongfulness of the alleged conduct as she believed that the bodily interference she was experiencing and attributing to the voices of angels and other tormentors would cease if she killed someone. Thus there is a clear and direct link between the alleged offence and Ms Cooper’s chronically psychotic state.
I should interpolate that I have had substantial experience with Dr Zimmerman and Dr Sullivan, both of whom would be regarded as outstanding experts in this area.
There is one further aspect that needs to be addressed, and it is this: something needs to be said about Ms Antoinette Davison. I have already told you that she was 65 years of age and a widow with two children. She was a person who was a giver, and she had spent her life doing what she could to assist other people. She was devoted to her family and her family to her. She will be acutely missed, in particular, by her grandchildren. That is the stark reality of what has happened in this case; a good, loving, worthwhile member of the community is now dead.
I received moving reports pursuant to s 42 of the Crimes (Mental Impairment and Unfitness to be Tried) Act about the deceased from Jessica Davison, Erin Davison, Dianne Davison on her own behalf and in part on behalf of her two daughters, the previous two reporters, and her son Cameron. I received a report from her son, Christopher, and a report from her son, Peter, who reported also on behalf of his son and stepdaughter. Their loss is great, but it ought, in circumstances as these, be recorded.
We come now really to the conclusions to which I am drawn. The evidence is all one way; that both doctors were of the opinion that at the time of the episode you were floridly psychotic. They both accepted that at the time of the episode, you were unable to reason with a moderate degree of sense and composure about whether the behaviour, as perceived by reasonable people, was wrong.
Your prognosis is such that you will require ongoing treatment for a long period of time and your detention in the Thomas Embling Hospital will be necessary.
I am satisfied that the evidence establishes that the defence of mental impairment has been made out, and I direct that a verdict of not guilty by reason of mental impairment be recorded. The ground of mental impairment is that pursuant to s 20(1)(b) of the Act you, Amber Cooper, at the time you killed Mrs Davison, did not know that your conduct was wrong. That is, as I have said, you could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable persons was wrong.
I have been provided with a certificate pursuant to s 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act over the signature of Dr Douglas Bell, the authorised psychiatrist of the Victorian Institute of Forensic Health. That certificate says this
Given Ms Cooper’s current mental state and needs, the appropriate treatment should be provided through inpatient services at the Thomas Embling Hospital at Yarra Bend Road, Fairfield. Facilities and services are available to provide treatment for Ms Cooper should the court make a custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act. Ms Cooper is currently in the Marmak Residential Mental Health Unit at Dame Phyllis Frost Centre. Arrangements are in place for a bed to be available for her direct transfer from court to the Thomas Embling Hospital on Thursday, 22 July should the court make a custodial supervision order under the Act.
Next, it follows that I declare you liable for supervision under the Act. I make a supervision order committing you into the custody of the Victorian Institute of Forensic Mental Health. I fix a nominal period of the order for 25 years and I direct that the order commence on 30 November 2009.
I direct that an order as to what facilities will be available and what treatment plan will be entered into pursuant to s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act be provided to the Court.
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