R v Gannon
[2019] VSC 754
•15 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
CRIMINAL DIVISION
S CR 2017 0092
| THE QUEEN |
| v |
| SHANE GANNON |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 December 2017 |
DATE OF REASONS: | 13 December 2017 |
DATE OF ORDERS: | 15 February 2019 |
CASE MAY BE CITED AS: | R v Gannon |
MEDIUM NEUTRAL CITATION: | [2019] VSC 754 |
HEARING CONSENT MENTAL IMPAIRMENT
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CRIMINAL LAW – Murder – Consent mental impairment – Not guilty because of mental impairment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J D Kantor | Emma Turnbull Lawyers |
HIS HONOUR:
This morning you, Shane Gannon, pleaded not guilty to the murder of your father because of your mental impairment. In your case, after careful consideration, the prosecution and the defence agree the proposed evidence establishes the defence of mental impairment. In those circumstances I am permitted to hear the evidence without a jury to decide whether I am satisfied that the evidence establishes the defence of mental impairment and, if so satisfied, direct a verdict of not guilty because of mental impairment. If I am not so satisfied, to order a trial by a jury.
The facts of the case can be set out relatively briefly.
In November 2016 you were living at home with your parents at 66 Langstaffe Drive, Wendouree, where the family had lived for about the last 12 years. You are 38 years of age and not married and for most of your life you have lived at home.
You were diagnosed with schizophrenia in 1999 and admitted to the Ballarat Mental Health over the years, sometimes as an in-patient but largely as an outpatient. In 2015 your case was taken over by your GP after your discharge from the Ballarat psychiatric service. You were often non-compliant with taking your antipsychotic medication Olanzapine.
Your relationship with your father was difficult and you often argued with him. Your relationship was worse when you did not take your medication and consumed alcohol more heavily and became withdrawn.
By November 2016 the arguments appeared to have been mostly about your playing loud music. Your mother has said that at times you were paranoid and carried a knife for protection.
In the days leading up to 2 November your mother observed that your condition was deteriorating. She observed that you were not taking your medication, drinking more and becoming withdrawn. But had you not many arguments, if any, with your father at about that time.
You and your parents were at home on 1 November 2016. You spent most of the night in your bedroom and had only two short interactions with your parents. Your parents went to bed in their separate bedrooms sometime after 10 pm.
About 1 am on 2 November you armed yourself with a knife and attacked your father in his bedroom stabbing him a number of times. He tried to defend himself, and went, or was forced, out of his bedroom into the hallway where you continued to stab him.
Your mother was awoken by the noise and heard your father say, among other things, ‘get away from me’. She says your father collapsed on the hallway floor. She called 000. She was not able to render much assistance and you told her ‘he’s dead’. That fact was confirmed by paramedics when they arrived. You told Constable Mark Duckworth that your father had been giving you grief for years and admitted that you had stabbed him. You were then arrested.
At about 6.45 am on that morning you were found unfit to be interviewed. At about 6 pm you were found to be unfit for medical examination because of your mental state. You were taken to the Melbourne Assessment Prison and on 3 November 2016 Dr Douglas Bell, a very experienced forensic psychologist, diagnosed you as being acutely psychotic and you were transferred to the Thomas Embling Hospital when a bed became available on 9 November 2016.
In June of this year you were transferred to the St Paul’s Psychiatric Unit at Port Phillip Prison where you remain.
When the house was searched police found a bloodstained Gerber Bear Grylls knife in your bedroom. On autopsy it was observed that your father had suffered 13 separate stab wounds to his head and various parts of his body. Those wounds were found to be the cause of his death.
You have never been formally interviewed about this matter by the police because of your mental state. You have, however, been interviewed by two forensic psychiatrists.
First, you were seen by Dr Leon Turnbull at the request of your legal advisors. He saw you on 21 March 2017 at Thomas Embling Hospital and he provided a report dated 24 March 2017. The principal purpose of that examination was to assess your fitness to be tried. He formed the view that it was likely that were you fit. He did, however, observe under the heading ‘Opinion’:
This was a limited assessment, and I would suggest there man will need reassessment at some later stage to evaluate the availability of a mental impairment defence and his thinking around the time of the allegations. He is simply not wanting to discuss those matters at present, and I do not know whether the reason for that is quite sensible cautiousness in the circumstances or for delusional reasons proper.[1]
[1]Report of Dr Leon Turnbull dated 24 March 2017, 5.
Second, Dr Turnbull saw you again on 26 May 2017 and provided a report dated 28 May. That report was prepared for the purpose of giving advice as to the availability of the defence of mental impairment. Under the heading of ‘Opinion’ he said:
On my assessment of this man and having reviewed the available records, I do not find any specific delusional or hallucinatory material that relates to his interactions with his father. It is his account that the conflict or allocation and stabbing occurred as a result of a long standing domestic dispute they had, and on the night in question was about the noise he was making. It is Mr Gannon’s assertion that he stabbed his father in response to having been punched. His picking up a knife was also not psychotically driven.
As such, despite him being in a florid state of psychosis which would have eaten away at his ability to exercise appropriate judgment, in the absence of clear psychotic material that relates to his actions and his interaction with his father I cannot conclude that he could not reason with a moderate sense of composure about the wrongfulness of his actions. I do not see a mental impairment defence available.[2]
[2]Report of Dr Leon Turnbull dated 28 May 2017, 7.
At that time Dr Turnbull did not have access to the recent records at Thomas Embling Hospital apart from the secure treatment order document. The principal reason that Dr Turnbull did not favour the availability of the defence was that you did not report any delusional and hallucinatory behaviour relating to the killing of your father.
Third, Dr Turnbull saw you again on 31 August 2017 and provided a further report dated 8 September 2017. He reported on this occasion:
Mr Gannon did provide me with new information today about his thought leading up to the specific time of the stabbing, that being he ‘believed something was not true’ and specifically regarding his father, Mr Gannon said, ‘I thought he was a demon … a fallen angel in the flesh’. I tried to disentangle his meaning of demon, and Mr Gannon can go so far as stating his use of the term is not in a figurative sense but that of a living being in a spiritual realm. I pressed and attempted to extrapolate his recollections and understandings but Mr Gannon withdraw stating, ‘that is as much as I know’.
I re-visited the actual mechanics of the stabbing and Mr Gannon stated, ‘I was not thinking about it … it was irrational … I didn't think about anything’. I revisited what he told me at the time of my previous assessment, and while he maintains his father was an instigator of the situation, he could not remember the specific and detailed outline of events as he had previously described them to me.[3]
[3]Report of Dr Leon Turnbull dated 8 September 2017, 2.
Then later in that report under the heading ‘Opinion’ Dr Turnbull said:
I have previously stated, on the then information available, that this man does not have a mental impairment defence available. Having said that, it has always been my view that he was floridly psychotic at the time of offending.
He previously provided motivations about a running conflict with his father. My opinion about the unavailability of a mental impairment defence rested with considerable weight on taking that seeming motivation at face value in the midst of his otherwise psychotic mental state at the precise time of the stabbing.
Having reassessed this man, he provided a glimpse, albeit brief, into his belief that his father was a devil. It is now clear he developed a delusional misinterpretation about his father that ran into parallel with the standard father-son difficulties.
Precisely what this man was thinking at the time of stabbing his father remains largely inscrutable, though a delusion that his father was a devil most probably formed part of the thinking leading to his actions. With that new information, it is my opinion that a mental impairment defence is available based on the second limb — that is he could not reason with a moderate degree of sense and composure about the wrongfulness of his actions.[4]
[4]Ibid 4–5.
That was not the end of the matter. At the instigation of the Office of Public Prosecutions, Dr Grant Lester, another very experienced forensic psychiatrist, examined you on 18 October 2017 and prepared a report dated 20 November 2017.
Dr Lester accepted in that report that you had an 18 year history of paranoid schizophrenia. Under the heading of ‘Opinion’ he said:
Mr Gannon is a 38 year old single Disability Support pensioner who has an 18 year history of recurrent paranoid schizophrenia exacerbated by non-compliance with his oral antipsychotic medication. There is a background of ‘domestic violence’ by Mr Gannon’s father towards wife and children, including Mr Gannon, and ongoing conflict with Mr Gannon. Mr Gannon has been particularly focused on his experience of the domestic violence over the years and the conflict with his father continued into his adulthood.
Mr Gannon has previously had thoughts of suicide and harming his father when his schizophrenic illness has recurred.
In the lead up to the index offence Mr Gannon reports some 12 months of non-compliance with his antipsychotic medication Olanzapine and over the two weeks leading up to the index offence Mr Gannon began to show his early warning signs of his illness (isolated behaviour, insomnia, change in appetite and increased alcohol intake). Mr Gannon described that in the 1–2 weeks before the index offence he had begun feeling increasingly unsafe, anxious and fearful. He reported increasingly feeling that something was going on and that his father was involved. He began hearing voices and/or feeling an ‘energy’ which compounded these feelings. He began to believe that his father was Evil, a demon, and must be killed to save someone in his family. His thoughts were unclear and confused.
He was able to describe taking a knife, entering his father's bedroom and stabbing his father but was not able to describe his thinking at that time. Subsequently on that day he was assessed as being in an acute recurrence of his schizophrenia and after reaching prison was hospitalised at Thomas Embling Hospital for the treatment of his schizophrenia for approximately 7–8 months before re transfer to prison.
At the time of the index offence I believe Mr Gannon was suffering from symptoms of a recurrence of acute paranoid schizophrenia.
At the time of the index offence I believe Mr Gannon was aware of the nature of his actions in that he was stabbing the victim.
I do not believe that at the time of the index offence Mr Gannon was able to reason with a moderate degree of sense and composure as to whether his conduct as perceived by reasonable people was wrong. He described anxiety fearfulness, confusion and delusional beliefs his father was evil, a devil. He felt he had to save someone by killing his father. The auditory hallucinations in the form of voices or ‘energy’ were powerful and commanding and he felt he had to do what they said.
I believe that a defence of not guilty due to mental impairment is available to Mr Gannon.[5]
[5]Report of Dr Grant Lester dated 20 November 2017, [41]–[48].
Dr Turnbull and Dr Lester both gave evidence before me and swore that the reports that they had provided were accurate and correct. It is true that both doctors had obtained a history from you about the hostile relationship which had existed for a number of years between you and your father. In the final analysis, however, both doctors concluded that there was at the time you killed your father delusional beliefs which played an important part in your actions.
You are the fourth of five children, you have two brothers and two sisters, your mother, who I have referred to in these reasons, is still alive and was present in court today. It is fair to say that your life and the lives of members of your family have been blighted by your mental illness.
You completed your VCE through TAFE and up until 2007 you worked as a factory hand and in hospitality. On the history you have provided you have reported that your father was violent towards you. Your father appears to have been away from the family for between eight and ten years when there was an intervention order in place in support largely of your mother.
Although you have been involved in the mental health system for many years, you told Dr Lester that, by the time of these events, you were only taking your antipsychotic medication about once a week, it having been prescribed daily.
You have no prior convictions. But the symptoms of your mental illness were exacerbated by your drinking. It appears that in the period leading up to these events you felt you were in danger and that your father had something to do with that sense of danger. You later regarded him as a demon and during that period your consumption of alcohol increased.
You told Dr Lester that leading up to the killing of your father you heard voices or ‘energy’ saying, ‘I had to kill dad otherwise he might hurt someone’.
Having considered all of the evidence, I am satisfied that you are not guilty of the murder of your father because of mental impairment. I am so satisfied on the basis that you did not know that the conduct was wrong. That is, you could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong. And I direct that the verdict of not guilty because of mental impairment be entered in the records of the Court.
As a consequence of that verdict I declare you liable to supervision. I order that you be remanded in custody at Port Phillip Prison because I am satisfied that there is no practicable alternative in the circumstances. I request that the Secretary of the Department of Health and Human Services provide a certificate of available services pursuant to s 47 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1977. Pursuant to s 41 of that Act a psychiatric report will be prepared.
It seems to me likely that it will take about six months for a place to be made available for you at Thomas Embling Hospital. In the meantime I suspect you will remain at St Paul’s Psychiatric Unit. That unit is now conducted under the supervision of Forensicare, so if there is any deterioration in your mental state the possibility of you being transferred to Thomas Embling at an earlier date will arise.
On 15 February 2019 the Court ordered that:
1.Shane GANNON is liable to a custodial supervision order pursuant to s 26(2)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
2.The Court, having received a report pursuant to s 41 of the Act and a certificate pursuant to s 47 of the Act, further orders that Shane GANNON is committed to the custody of the Victorian Institute of Forensic Mental Health at Thomas Embling Hospital.
3.Pursuant to s 28 of the Act, the nominal term of the supervision order is 25 years from 2 November 2016.
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