R v Coulter
[2014] VSC 42
•27 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No S CR 2012 0120
| THE QUEEN |
| v |
| CHRISTOPHER LEIGH COULTER |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Geelong (fitness for trial and special hearings) and Melbourne | |
DATE OF HEARING: | 9-13, 16-20, 23-24 September 2013; 20 February 2014 | |
DATE OF RULING: | 27 February 2014 | |
CASE MAY BE CITED AS: | R v Coulter | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 42 | |
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CRIMINAL LAW – Murder, arson and theft – Found unfit to be tried – Found to have committed the offences – Supervision order – No services available in an “appropriate place” – No practicable alternative to prison – Custodial supervision order made – Nominal term of 25 years – No review period specified – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 26, 27, 28, 31, 39, 40, 41, 42 and 47
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson | Office of Public Prosecutions |
| For the Accused | Mr P Chadwick SC | James Dowsley & Associates |
HER HONOUR:
Christopher Leigh Coulter, on 10 September 2013, a jury found you unfit to stand trial, under part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Thereafter, I determined that you were not likely to become fit to stand trial within the next 12 months.
Accordingly, a special hearing was conducted under part 3 of the Act. On 24 September 2013, the jury at the special hearing found that you had committed all of the offences with which you had been charged, namely, one charge of murder, one charge of arson, and two charges of theft.
It is now my duty to consider what orders should be made as a result of the jury’s verdicts at the special hearing.
On 24 September 2013, I declared you liable to supervision under part 5 of the Act, and made a timetable for the provision of material to the court by the Secretary to the Department of Human Services.
Having declared you liable to supervision, the court has the following options open to it under s 26 of the Act:
(a) Make a non-custodial supervision order, which would provide for your release into the community on conditions;
(b) Make a custodial supervision order, which would commit you to custody in an “appropriate place”, being an approved mental health service, a residential treatment facility or a residential institution. Such an order can only be made if the court has received the necessary certificate, stating that the facilities or services necessary for the order are available; or
(c) Make a custodial supervision order, which would commit you to custody in a prison. The court must not make such an order unless it is satisfied that there is no practicable alternative in the circumstances.
In deciding whether to make a supervision order, the court is required to apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community (s 39).
You have been assessed recently by Mr Peter Stanislawski, a forensic psychologist, and several members of the Disability Forensic Assessment and Treatment Service of the DHS, with a view to determining your suitability for placement in one of the residential treatment facilities or services provided by DHS. The certificate which the delegate of the Secretary to the DHS has provided to the court, under s 47 of the Act, states that DHS does not have an “appropriate place” in which to accommodate you.
In the circumstances, your counsel conceded that there was no practicable alternative to committing you to custody in a prison. Given the nature of your offending, and the risk factors to which I will refer shortly, that was a sensible concession to make; a non-custodial supervision order would be completely inappropriate in your case.
The offending
Some time on the night of 5 January 2012, Russell Hammond was tied up and strangled to death at his home in Drysdale, near Geelong. His car was then used to transport his body from his house to an isolated place in Corio, where his body was dumped and set alight. Afterwards, the car was driven back toward Leopold, where it too was set alight. A number of things were stolen from Mr Hammond that night, including his laptop computer, a television, some DVDs and his wallet.
Both you and your friend and co-accused, Garreth Giles, admitted to having been present at Mr Hammond’s house at the time of the murder, assisting in the disposal of his body and his car, and stealing his property. However, each of you denied committing the murder and blamed the other. In essence, you both claimed that, after emerging from Mr Hammond’s toilet, you discovered the other strangling Mr Hammond.
In finding that you committed the offence of murder, the jury must have been satisfied beyond reasonable doubt either that you strangled Mr Hammond yourself, or that he was killed pursuant to a joint criminal enterprise between yourself and Mr Giles.
You had not met Mr Hammond before the night of his death. However, Mr Giles had known Mr Hammond for some years; they originally met when Mr Giles was on some kind of “work for the dole” scheme. Then, about 5 years before his murder, Mr Hammond had been kind enough to offer Mr Giles somewhere to stay, and had supported him financially, at a time when Mr Giles was in trouble and had left his mother’s house.
On the night of his murder, you and Mr Giles caught a bus from where you were both living in Leopold, to Drysdale. When the two of you arrived at Mr Hammond’s house, unannounced, he invited you inside and offered you a drink.
There were documents located on Mr Giles’s computer which indicated that he had, for some time, been fantasising about killing somebody, and in a manner which was strikingly similar to the way in which Mr Hammond was in fact murdered. On the night in question, Mr Giles was carrying a backpack containing a number of items such as rope and duct tape, similar to that which was subsequently used to tie up Mr Hammond. The murder was clearly premeditated, at least as far as Mr Giles was concerned.
It is not necessary for present purposes for me to make any finding as to precisely when it was that you decided to become involved in the murder.
What is clear is that you willingly participated with another person in the completely unprovoked killing of a trusting person, who had invited you into his home and shown you nothing but hospitality. The two of you subsequently desecrated Mr Hammond’s body, in an attempt to conceal your involvement in what you had done.
You were found not fit to stand trial because you suffer from several cognitive deficits, which would have affected your ability to follow the course of a trial, to understand evidence, and to adequately instruct your lawyers. However, there has never been any suggestion that a defence of mental impairment might have been open to you; that is to say, there has never been any suggestion that you did not know the nature and quality of your actions on the night in question, or were not able to reason with a moderate degree of sense and composure that your conduct was wrong.
Victim impact
Russell Hammond was almost 50 at the time of his death. He was the eldest child of Helen and Brian Hammond, and the brother of Warwick and Anthea Hammond.
It is clear from the eloquent and moving reports provided to the court by his family and friends that Russell Hammond was a friendly, popular, easy-going person, who was interested in and respectful of other people. A physically active man, he had many interests, including travel, books and films.
His loved ones have all, quite understandably, struggled to come to terms with the way in which he died, and the utter senselessness of his death. The circumstances in which they learned of his death were particularly distressing.
Their sense of personal safety has been challenged. Things that once gave them pleasure or meaning now seem trivial and meaningless. They feel that their lives have all changed forever.
Personal background
You are now 20 years old, having been born in June 1993. At the time of the offending you were 18.
You are one of three children. You spent most of your childhood being cared for either by your grandparents, or in foster care of varying quality.
You struggled with schoolwork, and were subject to bullying and teasing at school. At some stage in your childhood, you were treated for attention deficit hyperactivity disorder. You were also identified as suffering from some intellectual deficits. You were expelled from several secondary colleges, and did not complete high school.
After leaving school, you had occasional placements in secure residential welfare and group homes, or with a girlfriend or relatives. You have been homeless on an intermittent basis.
At the time of the offending, you were in a relationship with Mr Giles’s younger sister, Brianna, with whom you had a son who was born in July 2012; you were all living, together with Garreth Giles, in the home of Brianna and Garreth’s mother.
It seems that your relationship with Ms Giles is now over, and you have not seen your son for some months now.
At some stage after leaving school, you worked for a few months as a scaffolder and labourer, but stopped working because you were unable to get around to organising a tax file number for yourself. Apart from that brief employment, since leaving school you seem to have spent your days at home, watching movies and playing computer games.
You started drinking alcohol and smoking cannabis from an early age. You have tried various other illegal drugs over the years, including amphetamines and benzodiazepines. However, there is no suggestion that drugs or alcohol played any role in this offending.
You have no prior convictions. However, between the ages of 14 and 17, you appeared before the Children’s Court on four separate occasions, charged with numerous offences, including assaults, attempted rape, and property offences. On each occasion, you were placed on a bond or probation, without a conviction being recorded.
You were required to attend counselling as a condition of some of those orders; your compliance with such orders was poor.
Mental health issues
In January 2013, Dr Aaron Cunningham, a forensic psychologist, performed some tests to assess your level of cognitive functioning. He assessed you as functioning within the intellectual disability range; your overall performance was better than only 0.2% of your age peers. Your information processing skills, memory skills and receptive language skills were particularly poor. Because of some significant differences between different parts of the test results, he recommended you be assessed to determine whether an acquired brain injury may be responsible for those discrepancies.
Subsequently, Ms Izabela Walters, a clinical neuropsychologist, conducted a full neuropsychological assessment. She agreed that your cognitive profile suggested an acquired brain injury. Although she identified several incidents in your past which may have caused such an injury, she did not have sufficient information to form any clear conclusion as to the probable cause. However, she expressed the opinion that you were unfit to stand trial.
Dr Danny Sullivan, a forensic psychiatrist who was retained by the prosecution, agreed with Ms Walters that you were unfit to stand trial because of your cognitive deficits.
After the special hearing, Mr Stanislawski prepared the report required to be prepared under s 41 of the Act.
Since your arrest in January 2012, you have spent most of your time in mainstream units, first at the Melbourne Assessment Prison, and then at Port Phillip Prison. According to Mr Stanislawski, you have been assessed as performing at too high a level to be placed in the Marlborough Unit, the specialist intellectual disability unit at Port Phillip Prison.
Initially, you did not cope well in the custodial environment, exhibiting a variety of adjustment difficulties. You were also aggressive and difficult to manage, when you first arrived in custody. You were involved in at least two violent incidents with other prisoners, which led to your spending some time in management units. It seems that you have now settled into the custodial environment, and have stayed out of trouble for many months.
According to Mr Stanislawski, your history of offending demonstrates a consistent pattern of failure to conform to social norms, impulsiveness, aggression, reckless disregard for the safety of yourself or others, and a lack of remorse or guilt. He believes you satisfy the diagnostic criteria for antisocial personality disorder. He does not believe you would be a good candidate for counselling-based treatment programs for a variety of reasons, including your poor history of compliance with previous youth justice programs, your unwillingness to discuss your problems, and your lack of empathy, remorse or guilt.
Dr Jenny Patterson, a clinical and forensic psychologist at DFATS, has also assessed you since the special hearing, for the purpose of assessing your suitability for admission into one of the DHS treatment programs.
She was more optimistic than Mr Stanislawski about your willingness to participate in counselling; although, like him, she noted that your unwillingness to take responsibility for your actions (including acknowledging your role in Mr Hammond’s murder) is a potential barrier to treatment.
According to Dr Patterson, research has shown that offenders with an intellectual disability have been found to reoffend at a higher rate than their mainstream peers, and also to require a longer time in treatment to show a sustained reduction in their risk of recidivism.
Dr Patterson conducted a number of tests to assess your specific risk of re-offending. Overall, you were assessed as having a moderate-high risk of violent re-offending.
Disposition
Having regard to the matters listed in s 40(1) of the Act, including in particular the nature of your intellectual disability, and the need to protect people from the danger you would pose if now released into the community, it is appropriate to make a custodial supervision order. In the absence of an appropriate place, I am satisfied that there is no practicable alternative but to order that you be committed to custody in prison.
Because murder was one of the offences which you were found to have committed, the court is required to set a nominal term of the supervision order of 25 years (ss 28(2) and (3)).
The court is also required to declare the day from which the nominal term runs. Both counsel agree that the appropriate date is 11 January 2012, being the date on which you were first taken into custody for these offences.
When making a supervision order, the court has power to direct that the matter be brought back to the court for review at the end of a period specified by the court (s 27(2)). Your counsel asked the court to direct that there be a review in 5 years’ time, on account of your youth. However, the period of 5 years was selected arbitrarily, not by reference to any evidence that there might be some improvement in your condition or behaviour within such a period.
In some cases, it is appropriate to specify a review period, because there is evidence that the offender has a mental condition which is amenable to medication or other treatment, with the possibility of substantial improvement within a particular time frame.
Depending on where you are housed within the prison system, there are various types of programs or counselling which may be available to address some of your problems. It is for the prison authorities, not the court, to determine where you are housed, and what programs are provided to you. Whilst it seems unlikely that you could overcome your cognitive deficits, there is some possibility that counselling may assist in arresting your antisocial personality traits and your propensity towards violence. You are not without any prospects of rehabilitation.
It may be that, at some stage in the future, you are assessed as being suitable for placement in one of the DHS residential programs, and as no longer needing to be detained in prison. In that event, an application could be made to the court to vary the supervision order (s 31).
Whilst you remain in prison, the Act requires that annual reports be provided to the court, addressing matters such as what treatment or counselling you have undergone, any changes to your prognosis or behavioural problems, and the like (s 41(3)). Such reports would be considered by the court as part of any application to vary the supervision order.
In the circumstances, I do not propose to direct that there be a review at what would simply be an arbitrarily-selected date. If there is a substantial improvement in your prognosis and behaviour, your situation can be addressed adequately by the making of a variation application at an appropriate time.
For these reasons, I propose to order as follows:
(1)You be committed to the custody of the Secretary to the Department of Justice, pursuant to s 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
(2)Pursuant to s 28 of the Act, the nominal term of the supervision order is 25 years, which is taken to have commenced on 11 January 2012.
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