R v Duckworth

[2009] VSC 125

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1417 of 2008

THE QUEEN

v

BENJAMIN JOHN DUCKWORTH

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JUDGE OF THE COURT:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2009
DATE OF JUDGMENT:	31 March 2009
CASE MAY BE CITED AS:	R v Duckworth
MEDIUM NEUTRAL CITATION:	[2009] VSC 125

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CRIMINAL LAW  —  mental impairment  —  agreement that defendant relevantly mentally impaired  —  confirmation of mental impairment by hearing by judge alone  —  supervision order made  —  Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 20(4).

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Appearances:	Counsel:	Solicitors:
For the Crown	Mr. R.A. Elston S.C.	Office of Public Prosecutions, Victoria
For the Defendant	Mr. R. Backwell	Galbally & O’Bryan

HIS HONOUR:

1. On 13 April 2008, the defendant, Benjamin John Duckworth, killed the deceased, Peter Gerard Sugrue, by stabbing him in a house in Hyde Street, Footscray.  The circumstances of the event were that the defendant had been out drinking, and had returned home to the house where he and the deceased lived as boarders.  He had known the deceased for about two weeks in which time he had had some differences with him.  An altercation occurred between them in the course of which he stabbed the deceased.  As a result of the injuries he sustained, the deceased suffered massive haemorrhage which caused his death.

1. It rapidly became apparent to those who apprehended the defendant the following day that he had some form of mental problem, and the end result of the enquiries made subsequently was that he was committed to the Thomas Embling Hospital, which is a forensic mental health facility in Fairfield, a suburb of Melbourne.  It exists to provide for the safe custody of persons who are mentally ill and who have been involved in some activity which would have breached the criminal law but for that mental illness.

1. Since his arrest, the defendant has been, on a number of occasions, assessed for the purpose of determining whether, at the time he stabbed the deceased, he was responsible for having done so, and was therefore amenable to the criminal law, or not. It is the unanimous opinion of the psychiatrists who have assessed him that, at the time he committed the acts which led to the deceased’s death, he was suffering from a mental impairment within the meaning of that term in s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”).

1. The law of this State is that, if, at the time of engaging in conduct which would otherwise constitute an offence, a person is suffering from a mental impairment as defined in that section of the Act, they must be found not guilty of the crime because of that mental impairment. Mental impairment is defined as a state in which the person acting did not know the nature and quality of the conduct in which he was engaged, or did not know that the conduct was wrong—that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. It is the opinion of the psychiatrists who have examined Duckworth that he falls into that category and is accordingly entitled to the protection of s 20 of the Act.

1. The question of the defendant’s mental impairment is not a matter of dispute.  Here, both the Crown and the defence agree that he was mentally impaired at the relevant time and in the relevant way.  That being so, the task of this Court is to ensure that that defence is, in fact, appropriately applicable in this case.  To that end, the Court has heard the evidence of Dr Grant Lester, the consultant psychiatrist and treating psychiatrist for some time at the Thomas Embling Hospital who has been involved in the defendant’s care, and has also read two reports of Dr Lester Walton, a well-known Melbourne forensic psychiatrist, who came to exactly the same conclusion independently.  On the basis of those reports, and of the oral evidence of Dr Lester, the Court is left with no doubt whatsoever that the defence of mental impairment is established in this case, as indeed it was agreed between Counsel it did.

1. Accordingly, the defendant’s disposition is to be determined in accordance with the Act. It is clear that the Court should make a supervision order under Part 5 of the Act. The effect of that supervision order is that, for the nominal term of 25 years, he will be placed under supervision. The supervision order will be a custodial supervision order, meaning that he will be taken back to the Thomas Embling Hospital, where he will remain, or at such other facility as is, from time to time, determined to be appropriate for persons with his particular disabilities. The Court has received a certificate under s 47 of the Act to the effect that those facilities are available for him to be treated in that way, and accordingly that will occur.

1. The order of the court will be that the defendant be made the subject of a supervision order pursuant to s 26 of the Act, and that the nominal term of that supervision order be 25 years. The effect of the supervision order is that over the whole of that period he will be reviewed periodically, and the question of his treatment will be resolved according to the results of those reviews.

1. The effect of this finding is that the defendant is not convicted of a criminal offence but is committed to Thomas Embling Hospital in accordance with the Act.

1. The formal orders the Court will make are as follows:

1.Pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”), a verdict of not guilty of murder because of mental impairment be recorded in respect of Benjamin John Duckworth (“the defendant”).

2.There be a declaration pursuant to s 23(a) of the Act that the defendant is liable to supervision under Part 5 of the Act.

3.Having regard to the receipt this day by the Court of an appropriate certificate pursuant to s 47 of the Act—

a.there be a custodial supervision order made in respect of the defendant pursuant to ss 26(1) and (2) of the Act;

b.pursuant to such order, the defendant be committed to an appropriate place as defined by s 3(1) of the Act, namely, the Thomas Embling Hospital at Yarra Bend Road, Fairfield;

c.such order to commence on 14 April 2008 and have a nominal term of 25 years.

4.There be liberty to apply generally.