R v Guy

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0022

THE QUEEN

ADAM JOSEPH GUY

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2015
DATE OF RULING:	12 October 2015
CASE MAY BE CITED AS:	R v Guy
MEDIUM NEUTRAL CITATION:	[2015] VSC 559

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CRIMINAL LAW – Murder – Plea of not guilty by reason of mental impairment – Trial by judge alone – Consent hearing – Diagnosis of paranoid schizophrenia – Verdict of not guilty by reason of mental impairment – Report furnished pursuant to s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 24.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson	Office of Public Prosecutions
For the Accused	Mr P S Tiwana	James Dowsley & Associates

HIS HONOUR:

Introduction

On Monday, 29 September 2015, Adam Joseph Guy (for convenience, ‘AJG’) killed his mother, Pasqualina Guy. He pleaded not guilty to her murder — by reason of mental impairment — on 12 October 2015.
The prosecution and defence agreed that the available evidence established the defence of mental impairment; and that, pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’), I should hear the trial of the proceeding. The Act empowers me to determine whether, at the time that he committed the acts that would otherwise constitute murder, AJG was suffering from a mental impairment.
For the reasons that follow, I find AJG not guilty of murder because of mental impairment.
The defence of mental impairment

The defence of mental impairment is found in s 20(1) of the Act. By reason of s 20(2), if the defence of mental impairment is established, I must find AJG not guilty of murder ‘because of mental impairment’. Section 20 provides:

20 Defence of mental impairment
(1)The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in 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 and quality of the conduct; or
(b) he or she 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).
(2)If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

In this case it is the second limb of s 20(1) — that at the time of the conduct constituting the offence AJG did not know that it was wrong — which is engaged.
My capacity to hear the matter flows from s 21(4) of the Act. I am able to do so if — as has occurred — the prosecution and defence both agree that the proposed evidence establishes the defence of mental impairment. Section s 21(4) provides:
(4)If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and —
(a) 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 be recorded; or
(b) if the trial judge is not so satisfied, must direct that the person be tried by a jury.
In the circumstances, I regarded it as appropriate to exercise the power reserved to the court under s 21(4).
Background
It is necessary to outline the essential facts.
AJG often stayed with his parents at a property they owned in Safety Beach.
At about midday on Monday, 29 September 2014, Pasqualina Guy arrived home from shopping, and placed her bags on the kitchen bench.
AJG confronted his mother, and there was an argument about his reluctance to take prescribed medication. He shoved his mother and forced her to sit on the bed in the master bedroom. When his mother left the premises, AJG confronted her in the rear yard and forced her back into the master bedroom. He then choked her into unconsciousness.
Once his mother again became conscious, AJG continued to assault her. He punched her to her face multiple times, and he attempted to strangle her with a piece of dowel. As a result, Mrs Guy suffered multiple facial fractures, and the length of dowel shattered.
AJG then picked up an electric guitar and struck his mother at least six times to the back of her head whilst she was lying on her stomach on the floor, causing multiple fractures to the rear of her skull together with brain lacerations and contusions. Mrs Guy died as a result of these head injuries.
AJG then discarded the dowel in the lounge room and the electric guitar in the laundry trough. Police later found many fragments of dowel beneath the deceased’s body, and in and around an open head wound at the rear of her skull.
AJG then left the premises and drove to Martha Cove, where a number of people observed him yelling abuse and acting erratically.
After returning to the Safety Beach address, at 1.16 pm AJG answered a telephone call from his father, Anthony Guy. A series of calls followed, and during a later conversation AJG said, ‘I’ve killed mum … I’ve choked her’.
Anthony Guy immediately contacted ‘000’ and requested police attendance at his home address. When police attended, they found AJG standing on the front nature strip outside the property. He told them that he had killed his mother, and that her body was inside a bedroom at the rear of the house. During a subsequent search, the body of the deceased was found in the master bedroom.
AJG was arrested. Blood spots were observed on the legs of his jeans. In a video-taped record of interview he said:
Just throw the book at me, mate, cause I’ve failed, mate, and I killed my own mother. I had some idea in my head that she was the last demon on earth. I don’t know, there was some idea in my head that she was the demon … Like if you kill this demon here comes world peace. I’m like where did this come from, mate? Where … with a guitar. Oh, my God … where did this come from? … I hit her over the head with a guitar.
He also told police that he had argued with the deceased about his medication, and that he had assaulted her in the rear yard and master bedroom of the house.
AJG was then examined by a doctor employed as a Forensic Medical Registrar with the Victorian Institute of Forensic Medicine, who concluded that he was not fit to be further interviewed. During an examination, the doctor noted evidence of blunt and friction trauma to multiple sites on AJG’s limbs.

Pasqualina Guy, affectionately known as Lina, was born in Italy on 25 August 1950. She was aged 64 years at the time of her death. She migrated to Australia with her family in 1955 and settled in Oakleigh. In 1974, she married Anthony Guy, and they resided together in Mooroolbark. Their only child, AJG, was born in 1979. In 1999, she and Anthony Guy purchased a holiday home in Safety Beach, and this became their permanent residence in 2012.

AJG was born on 16 April 1979, and was aged 35 years when he killed his mother. He was not married and had no dependants. Although he resided in Melbourne, AJG was a frequent visitor to his parents’ Safety Beach home, and he maintained a bedroom at the front of the house.

In the five years leading up to his mother’s death, AJG helped his father operate a delivery business which sub-contracted to Toll Pty Ltd. He had a keen interest in American Gridiron football, and in 2013 had been appointed Vice President of the Melbourne Royals Gridiron Club. In early 2014, however, AJG’s health deteriorated and he resigned his position at the Melbourne Royals. He began isolating himself from friends, complained of hearing voices and was paranoid that people were following and trying to assassinate him .

As a result of an incident at the Toll depot in Port Melbourne on 19 April 2014, AJG commenced treatment with the Rosebud Crisis and Assessment Team (CAT), also known as ‘Bayview House’. He was diagnosed as having a drug induced psychosis. In the ensuing six weeks, the accused resided at his parents’ Safety Beach home and continued treatment with Bayview House.

On 2 July 2014, AJG attended at the Dromana Family Doctors clinic and consulted with a General Practitioner, Dr Sadia Shinwari. During this consultation, AJG said that he was not willing to take his prescribed anti-psychotic medication and spoke of an elaborate scheme by police, FBI and other law enforcement authorities, to entrap him. Notwithstanding concerns raised by Dr Shinwari, however, AJG was discharged from the care of Bayview House on or around 8 July 2014. In a letter of 8 July 2014 addressed to Dr Shinwari, under the hand of Dr Mira Vukovic, Consultant Psychiatrist, it was said:

[AJG’s] mental state has settled with no current psychotic symptoms and no ongoing substance abuse. He reports adherence to his medication with no ongoing side effect concerns. Risk concerns are low with no current suicidal ideation, plans or intent. There is no risk to others.

Expert reports

At the hearing before me, the defence relied on the opinions of Dr Lester Walton, set out in his report dated 4 March 2015; and the prosecution relied on a psychiatric report, and oral evidence, of Dr Kirsten Clayer.
Dr Walton, an experienced Consultant Psychiatrist, examined AJG on 19 November 2014, and reassessed him on 2 March 2015. In the interim, Dr Walton was provided with the brief of evidence.
According to Dr Walton, AJG’s psychiatric history commenced in 2009, when, as AJG put it, ‘[he] was visited by an Angel’. Apparently this was a very realistic experience for AJG. The ‘angel’ told him that, ‘You could become a great saviour. Are you interested in the job?’. Thereafter, at intervals, AJG experienced auditory hallucinations, and received messages directed to him from radio and television.
AJG told Dr Walton that, from late 2013, various ‘revelations from God’ became more frequent and intrusive, to the point where AJG was incapable of coping. From February until April 2014, AJG again took up drug use — he had not used cannabis since 2006 — which consisted of five ecstasy tablets, and the consumption of around 3¼ ounces of marijuana in total. AJG described this as an attempt at self-medication rather than recreational use.
Dr Walton reported that AJG became sufficiently paranoid that on 19 April 2014 he was convinced that he was about to be assaulted at work and he ran away. The Rosebud CAT, ‘Bayview House’, intervened, and AJG was treated as an outpatient, being prescribed the antipsychotic medication, Zyprexa, and the anti-anxiety agent, Valium. AJG ceased taking this medication after a few weeks only, however, because, as he said, ‘I didn’t think there was anything wrong with me’. This assertion was made despite his continuing to entertain thoughts that elements of the Australian Government (in particular, ASIO) were intent upon killing him. Indeed, AJG recalled seeing a man armed with a firearm in his driveway on Anzac Day. AJG stated that he resided with his parents because he was too afraid to return to his own home.
Unhappily, notwithstanding the fact that, by early July 2014, AJG had confided in his general practitioner that he was no longer taking his anti-psychotic and other medication, and that he gave a clear description of continuing deluded thinking, he was discharged from Bayview House on or around 8 July 2014. AJG told Dr Walton that he continued to be afflicted by what he now recognises were auditory hallucinations; and he was convinced that his delivery van was under surveillance and that his telephone was bugged, causing him to speak directly to what he perceived to be the listening devices in an attempt to negotiate with his persecutors to leave him alone.
AJG told Dr Walton that, around 25 September 2014, he was convinced that he had achieved settlement with the government, including compensation of $1.7 million. AJG said, ‘I felt it was a good result’. By the next day, AJG felt he was the incarnation of Adam from the Bible, and he ‘could now put things right’. AJG had become preoccupied with stopping Islamic extremists, and the voices said to him, ‘We are doing it now. What do you want us to do now?’. By 28 September 2014, AJG was quite fatigued, not having slept for days. AJG thought that the listening devices were broadcasting his conversations around the world. He had been instructed by God to avoid watching television news regarding the combating of Islamists. AJG was convinced that the ‘Second Coming’ of the Messiah was imminent.
Of particular significance, AJG told Dr Walton that the voices instructed him that his mother was an unbeliever. When she returned from shopping on 29 September 2014, he tried to explain that she required exorcism because she was demon-possessed. His mother said he was ‘sick’, and pleaded with him to take his prescribed medication and avoid any drug abuse. AJG told Dr Walton that he next became aware of ‘gurgling sounds’, which he at first thought emanated from the demon possessing his mother. He said, ‘She was being used as a puppet by a demon. I told her to rest in bed. She got angry. I had to get the demon out’. AJG told Dr Walton that he was instructed by the voices to ‘commit one hundred per cent to killing her’, and that he would not actually have to end his mother’s life but that the simulation would result in casting out the demon. He thus commenced to strangle her. The gurgling noise became louder and was ‘flapping everywhere’. On the one hand, the sound had an unbearable quality and, on the other hand, AJG felt that he had failed in the exorcism. He became overwhelmed with panic when his mother seemed to have lost consciousness and would not wake up. AJG stated, ‘I couldn’t get the demon out of her. She had become the demon. It wasn’t like dealing with a human being. It was dealing with a demon not my mother’, and he thus proceeded to batter his mother’s head, including with a guitar. The gurgling noise ceased, but the voices continued, saying, ‘We’ve got you. We’re smarter than you’.
AJG told Dr Walton that, in the aftermath, he felt that he participated in telepathic communication with his father, including his father having become aware that he was possessed by demons and needed to be exorcised. He was convinced that his father was already aware of what had occurred. When he rang his father he asked, ‘How far away are you?’, since he expected his father was on his way home. His father was confused, and AJG hung up. AJG contemplated suicide by cutting his throat, but ‘didn’t have the guts’. He then decided to drive off a cliff at Mount Martha, but then had some inkling of wrongdoing. AJG stated, ‘No, I wanted to do the right thing by my family, take responsibility’ for having killed his mother. He again rang his father and admitted to making a ‘catastrophic mistake’, regarding himself as having been duped by the voices.
Ultimately, Dr Walton expressed the opinion that AJG ‘is properly described as suffering from what is becoming increasingly chronic paranoid schizophrenia’. His was not ‘a drug-induced psychosis’, but ‘even the minor amount of ecstasy and cannabis he had consumed leading up to the killing may have aggravated his condition’. At present, although AJG ‘remains afflicted by residual psychotic symptoms’, his mental state has improved and he is fit to be tried. Dr Walton expressed the view that the only factor which might be seen as detracting from the viability of a defence of mental impairment is that AJG seems to have developed an appreciation of wrongdoing in the immediate aftermath of the killing, ‘which might tend to suggest that he had not been deprived of that appreciation at the actual time of the killing’. Despite that, Dr Walton remained of the view that a viable defence of mental impairment remained open. AJG described ‘being driven by relevant delusions’, ‘cajoled by hallucinatory voices’ and, so Dr Walton thought, ‘it is apparent that he was acutely psychotic at the material time which was promptly recognised once he was received into custody’. Dr Walton was of the opinion that the ‘second leg of the test’ of mental impairment was made out, ‘that is, [AJG] could not reason with a moderate degree of sense and composure as to the wrongfulness of his act at the material time’. AJG ‘seems to have been intent upon on (sic.) undertaking some process of exorcising the demon within his mother and it might be argued that he did not appreciate that his actions may actually result in her death’.
At the request of the prosecution, AJG was also assessed by Dr Kirsten Clayer, a Forensicare Senior Registrar in Forensic Psychiatry. In her report dated 6 August 2015, Dr Clayer recounted AJG’s psychiatric history — including the killing and its aftermath — which, unsurprisingly, largely mirrored the history reported by Dr Walton. My failure to repeat the history set out by Dr Clayer should not be taken as an adverse reflection on the thoroughness of her report — indeed, I was impressed by its depth of detail and thoughtfulness — but simply that to repeat the history would be otiose. It is desirable, however, to set out Dr Clayer’s ultimate conclusions in full. She stated:
[80]In my opinion [AJG] suffers from an enduring mental illness rather than a drug induced psychosis. It is possible that the drugs may have precipitated his illness, however I do not believe it is causally related. The symptoms of mental illness continued for some time after he stopped using drugs and he was on assertive treatment. The symptoms returned after he stopped taking antipsychotic medication. At the time of our interview, [AJG] appeared blunted in his emotional range, which is consistent with chronic mental illness. He also had impaired awareness of his psychotic illness.
[81]There is ample evidence to indicate that [AJG] was floridly psychotic around the time of the index offence. There is evidence from the statement of [AJG’s] father, which indicates that [AJG] was unwell on the day of the index offence. Further evidence of [AJG’s] state of mind includes [AJG’s] statement to the Police immediately after the offence when he spoke of his mother being the last demon on earth, the medical examiner's statement that [AJG] was unfit to be interviewed and the statements by witnesses describing [AJG] yelling abuse at strangers after the index offence. Clinical notes from the MAP, including assessments by Consultant Psychiatrists, reveal that [AJG] remained psychotic for several months following incarceration.
[82][AJG’s] mental state improved on antipsychotic medication in the community. By his own account, he was non-compliant with medication, which led to a deterioration in mental state prior to the index offence. Following incarceration, [AJG’s] mental state improved on olanzapine without complete resolution of symptoms. [AJG] described a brief worsening of symptoms in prison when he was changed from Olanzapine to Amisulpiride. Since he has been on Amisulpride, he reports the psychotic symptoms have resolved.
[83]In regards to the availability of a defence of Mental Impairment as set out in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, in my opinion [AJG] has the defence of mental impairment open to him. At the time of commission of the conduct constituting the alleged offence he was suffering from a mental impairment in the form of an untreated schizophrenic illness. I believe that [AJG] was (a) aware of the nature and quality of his conduct, in that he was choking his mother to exorcise her demons and hitting her over the head to silence her.
[84]However, in my opinion at the time of commission of the conduct constituting the alleged offence [AJG] (b) did not know that his 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). By his own account he did not intend to kill his mother, he was experiencing command auditory hallucinations telling him that he had to commit to killing her 100%. [AJG] believed that his mother was possessed by a demon and the demon had to be killed. The more he choked her, the more his mother looked like a demon and sounded like a demon. At the time of the alleged offence, he was labouring under the delusional belief that exorcising the demon would lead to world peace. In my opinion therefore, as a result of these florid psychotic beliefs, [AJG] was unable to reason with a moderate degree of sense and composure that choking his mother and then hitting her with a guitar was wrong. As a result of these psychotic symptoms, he believed that his actions of choking and assaulting his mother, to exorcise the demons, was morally justified.
Findings

As a result of the combined effect of the psychiatrists’ opinions, I am well satisfied, on the balance of probabilities, that the defence of mental impairment is made out. I am satisfied that, at the time that he killed his mother, AJG was floridly psychotic such that, although he was aware of the nature and quality of his actions when he inflicted the fatal injuries on his mother, he did not know his conduct was wrong, and could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. The defence of mental impairment is thus made out, and AJG must accordingly be found not guilty of murder because of mental impairment.
Having found AJG not guilty because of mental impairment, since it is not realistic to release him unconditionally, I have no option but to declare him liable to supervision under Part 5 of the Act. So much follows from s 23.

Pursuant to s 21(4)(b) of the Act, I shall direct that a verdict of not guilty because of mental impairment be recorded in the records of the court. I shall also make a declaration under s 23(a) that the accused is liable to supervision under Part 5 of the Act. I will hear the parties concerning any necessary orders under s 24, s 41 and s 47 of the Act.

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[2015] VSC 559

12 October 2015