R v Janzow - [2015] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v JANZOW
[2015] SASC 194
Judgment of The Honourable Justice Sulan
21 December 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
The defendant was charged with the murder of Luca Dayyan Janzow. He pleaded not guilty on the grounds of mental incompetence.
The defendant conceded the objective elements of murder. The prosecution conceded the defendant was not mentally competent to commit murder. Pursuant to s 269E, the Court exercised its discretion to proceed firstly with a trial of mental competence.
The Court considered all relevant psychiatric reports and statements. The opinions of the examining psychiatrists are accepted. The defendant was mentally incompetent to commit the offence of murder. The objective elements of murder are established.
Held:
1. The Court is satisfied beyond reasonable doubt that the objective elements of murder are established.
2. The Court finds on the balance of probabilities that the defendant was suffering a mental illness at the time he killed Luca, and did not know his conduct was wrong. The defendant is not guilty on the grounds of mental incompetence.
3. The defendant is liable to supervision, subject to a limiting term of life.
Criminal Law Consolidation Act 1935 (SA) Part 8A, s 269C, s 269A(1), s 269E, s 269FB(1), s 269O(1)(b)(i), s 269(3), referred to.

R v JANZOW
[2015] SASC 194
Criminal

SULAN J: The defendant, David Janzow, is charged with the murder of Luca Dayyan Janzow at Athelstone on 8 July 2014. He pleaded not guilty on the grounds of mental incompetence.
On 14 December 2015 I found the defendant not guilty of murder on the ground of mental incompetence. I declared that he was mentally incompetent to commit the offence and I declared that he was liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’). I now provide my reasons.
The issue of mental incompetence
Section 269C of the Act provides:
269C—Mental competence
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
Mental impairment is defined in s 269A(1) of the Act as including:
269A—Interpretation
...
(a) a mental illness; or
(b) an intellectual disability; or
(c) a disability or impairment of the mind resulting from senility,
but does not include intoxication;
Section 269E of the Act provides inter alia that where the defendant raises a defence of mental incompetence, the trial Judge has a discretion to proceed first with the trial of mental competence.
Counsel for the Director of Public Prosecutions (‘the DPP’), and counsel for the defendant agreed that I should proceed first with the trial of the defendant’s mental competence to commit the offence. Counsel for the DPP conceded that the defendant was not mentally competent at the time of the offence.
I have considered the statements of three psychiatrists, Dr Henry Kristall, Dr Stephen Meredith and Dr Andrew Lawlor. Dr Kristall was the defendant’s treating psychiatrist prior to the events of 8 July 2014. Drs Meredith and Lawlor observed the defendant shortly after he had been arrested.
Subsequently, a number of psychiatrists examined the defendant and provided reports. I have had regard to reports of Dr Jules Begg, dated 20 May 2015 and 10 September 2015, Dr Chris Branson, dated 13 July 2015 and 21 September 2015, Dr Lynette Rose, dated 29 June 2015 and 21 September 2015, Dr Craig Raeside, dated 24 October 2014 and 24 February 2015.
Dr Kristall was the defendant’s treating psychiatrist and had treated him since October 2011. The defendant suffered a bipolar disorder. His condition was treated by Dr Kristall who last saw the defendant on 7 July 2014, the day before he killed his son. The defendant told Dr Kristall he felt “down”. Dr Kristall was of the view that the defendant appeared to be coping.
Dr Meredith saw the defendant shortly after he had been arrested. The defendant told Dr Meredith, “I diagnosed myself as a psychopath and took it out on me and my son. I researched the internet six days ago”. The defendant was distressed and tearful. Dr Meredith was of the view that he was suffering from a significant mood disorder. His assessment was that the defendant was mentally ill and required treatment in hospital.
Dr Lawlor first saw the defendant on 9 July 2014. Over a period of approximately nine days he saw the defendant on regular occasions. The defendant was suffering from a major depressive episode, with resolving psychosis on a background of bipolar affective disorder. On 18 July 2014, the defendant was moved to James Nash House.
Dr Raeside saw the defendant on 16 July and 23 October 2014. When he was seen by Dr Raeside, the defendant was 36 years of age. It appears that he had suffered continually from a mental illness from when it was first diagnosed.
Dr Raeside obtained a history of the defendant’s mental condition. He noted that the defendant had suffered a drug-induced psychosis at the age of 19. At that time, he made a suicide attempt. Subsequently, he remained depressed and made a second suicide attempt. The defendant believed that he had evil inside him. He had heard voices. In his early 20s, the defendant consumed alcohol, marijuana, ecstasy and LSD. After the two suicide episodes he was treated by a psychiatrist. After about two years of treatment, the defendant’s depression had resolved and he had no more psychotic symptoms.
The defendant met his wife when he was about 25 years of age. During the marriage, the defendant suffered mood disorders. He and his wife saw a psychologist/counsellor. There was stress and tension within the wider family group, as some of the members of the defendant’s family denied that he was suffering from any mental illness. The defendant and his wife continued to consult a psychologist. The defendant was undertaking psychiatric treatment with Dr Kristall. The defendant suffered from depressive episodes. He was treated with different drugs. Leading up to the incident, the defendant was suffering from depression. He was using Olanzapine.
Dr Raeside provide a further report on 24 February 2015. He had been provided with the witness statements and the transcript of the interview of the defendant by police. Dr Raeside concluded that there is clear evidence that the defendant was suffering from a mental impairment at the time of the offence. He was satisfied that the defendant was experiencing psychotic symptoms in addition to depression at the time that he killed his son. Dr Raeside was of the opinion that the defendant was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions. He observed that the defendant appeared to have formed delusional beliefs about his son, believing that his son might have already become a psychopath and could turn out to be like his father, or even worse. There were indications that the defendant was concerned that his son would also develop a bipolar disorder.
Dr Lynette Rose interviewed and examined the defendant on 11 June 2015. She concluded that he was suffering from a schizoaffective disorder with a differential diagnosis of bipolar disorder. She concluded that the defendant was unaware that his conduct was wrong at the time he killed his son. She was also of the view that he was unable to control his conduct and that the defendant wanted to remove his son from having the same fate that the defendant was experiencing. Dr Rose provided a supplementary opinion on 21 September 2015. She concluded that the defendant was acting on psychotic beliefs at the time of the alleged offence and did not have mental capacity to commit the offence.
Dr Chris Branson provided a report dated 13 July 2015, and a subsequent report of 21 September 2015. He concluded that the defendant suffers from a bipolar affective disorder and has had many episodes of serious depression, as well as hypomania. He suffers psychotic symptoms, such as delusion. Dr Branson was of the view that the defendant was suffering from severe depression with clear psychotic features as part of his bipolar affective disorder at the time he killed his son. He is of the opinion that the defendant was suffering from a mental impairment, namely, a severe major depression with psychotic features. He concluded that the defendant would have been unable to reason with a moderate degree of sense and composure about the wrongfulness of his act. The defendant believed that he was being kind and merciful to his son to stop his son from having a life like his.
Dr Jules Begg provided reports dated 20 May 2015 and 10 September 2015. Dr Begg concluded that, at the time the defendant killed his son, he was suffering from a psychosis due to the effects of bipolar disorder. His mood state was a mixture of depression and mania. He was suffering from a mental illness and he was not aware of the wrongfulness of his conduct. He was unable to reason with a moderate degree of sense and composure. He was suffering from delusional thinking that distorted his ability to reason with a moderate degree of sense and composure.
Having determined to decide the question of the defendant’s mental competence first and having considered the psychiatric reports, I make the following findings.
I accept the opinions of the examining psychiatrists. I am satisfied that, at the time that the defendant stabbed Luca Janzow, thereby causing his death, the defendant was suffering from a mental illness resulting in a mental impairment. I find that the defendant was mentally incompetent to commit the offence of murder.
The objective elements
Pursuant to s 269FB(1) of the Act, I am required to consider whether the objective elements of the offence have been established.
The objective elements are not in dispute. They are as follows.
Leading up to 8 July 2014, the defendant was exhibiting signs of mental illness. He was seen by his treating psychiatrist on 1 and 7 July 2014. He was due to visit his psychiatrist again on 10 July 2014.
On Tuesday, 8 July 2014, the defendant awoke at about 5.00 am. This was not unusual. At about 7.00 am he brought the youngest child into the bedroom where his wife was still in bed. Ms Trinne, the defendant’s wife, remained in bed for about 10 minutes. When she got out of bed she noticed that the defendant’s car was gone. He had left his phones and wallet in the house. She was unaware at that time that the defendant had taken Luca with him. When she discovered that Luca was missing, she made enquiries of employees, members of the family and friends in an attempt to locate the defendant. She then went to the police station at Norwood and reported him missing.
At about 8.40 am, police were patrolling an area of Athelstone when they were called to an accident. As they were attending the accident, one of the police officers noticed a Volkswagon utility stopped nearby. The defendant alighted from the vehicle. He was covered in blood. He was not wearing shoes. He approached the officer and said, “I need help. I’ve murdered my son”.
The officers went to the defendant’s motor vehicle where they noticed the defendant’s son, Luca, who had been stabbed. He was treated by paramedics at the scene. The defendant said to one of the paramedics, “No-one deserves me, I’m a psychopath”.
Luca was transferred to the Women’s and Children’s Hospital. However, it appears that he had died prior to his arrival at the hospital. The defendant was treated for minor injuries that he had inflicted upon himself. He was arrested and transported to the Royal Adelaide Hospital.
Luca died from multiple stab wounds to the right side of his neck, resulting in perforations of the right common carotid artery and the right internal jugular vein.
Victim impact statement
Pursuant to s 269R(3) of the Act, the defendant’s wife, Julia Trinne, provided a victim impact statement. The statement was read to the Court by counsel for the DPP. In my view, it is important to make reference to that statement and to a number of issues that Ms Trinne has identified.
Ms Trinne’s statement was a moving account of the effect that the death of her son and the loss of her husband has had upon her and upon her future life. Her articulate statement about her emotions demonstrate her love for her family, her lack of bitterness towards the defendant and the deep sadness that has resulted from the events of 8 July 2014. A loving family has been fractured and the devastation caused as a result of the defendant’s mental illness is laid bare in Ms Trinne’s statement. Her courage in publicly revealing her private grief must be recognised.
Her victim impact statement focuses attention to the public and those in authority that persons with mental health issues, their immediate family, their friends and others who may be affected needs greater attention and understanding. She makes the point that although there is greater awareness of mental illness today, there is still much which needs to be done to assist people with mental illness and to assist their families. She makes the point that these issues need a greater focus in our society. She hopes that her tragedy will bring about some positive results which might prevent similar incidents occurring in the future.
I trust that those who are charged with the task of dealing with mental health issues in our community will consider Ms Trinne’s plea for greater awareness and greater assistance for those in need of mental health treatment.
Conclusion
I am satisfied beyond reasonable doubt that the objective elements of murder have been established. I am satisfied on the balance of probabilities that the defendant was suffering a mental illness at the time he killed Luca, and that he did not know that his conduct was wrong. I find the defendant not guilty of murder on the grounds of mental incompetence.
I declare the defendant liable to supervision. I make a supervision order pursuant to s 269O(1)(b)(i), and set a limiting term of life.