R v Jones
[2012] VSC 127
•4 April 2012
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 88 of 2011
| THE QUEEN |
| v |
| SHARNA JONES |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2012 | |
DATE OF RULING: | 4 April 2012 | |
CASE MAY BE CITED AS: | R v Jones | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 127 | |
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CRIMINAL LAW – Attempted murder – Plea of not guilty by reason of mental impairment – Consent hearing – Diagnosis of paranoid schizophrenia – Report furnished pursuant to section 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) – Supervision order imposed – 25 year nominal term.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr John McArdle QC | Office of Public Prosecutions |
| For the Accused | Mr Alan Marshall | Mr Mario Vaccaro |
HIS HONOUR:
On 15 February 2012, Sharna Jones pleaded not guilty before me to the attempted murder of Mr Christian James Clingin on 26 December 2010. This matter proceeded as a hearing pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”). This provision of the Act empowers me to determine whether, at the time that Ms Jones committed the acts that constitute the charged offence of attempted murder, she was suffering from a mental impairment.
The Defence
Section 20(2) of the Act states that if I find that Ms Jones was suffering from a “Mental Impairment” at the time of the alleged offence, as defined in s 20(1) of the Act, I must find her not guilty of that offence. Section 20(1) of the Act defines mental impairment as follows:
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.
Both parties agreed that the evidence clearly establishes that Ms Jones was suffering from a mental impairment on 26 December 2010.
It is a prerequisite that the prosecution and defence both consent to a judge hearing such a case without a jury, pursuant to s 21(4) of the Act, which provides as follows:
(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.
Both parties expressly consented to the hearing on 15 February 2012 being conducted in this manner, and I regarded it as appropriate to do so in the circumstances.
Background
Sharna Jones was born in June 1981 and is now 30 years old. Her partner and the victim of the alleged offending, Mr Clingin, is aged 37.
The particular charged offence was that at 11.30pm on 26 December 2010, Ms Jones attempted to murder Mr Clingin, her partner at the time, at the residence that they shared at Unit 5, 1A Pearce Street, Wodonga.
Mr McArdle QC, on behalf of the prosecution, set out the background to the charged offence in some detail. He noted that at the time of this offence, Ms Jones and Mr Clingin had been in a relationship for approximately 10 years and had a child together, though that child was not in their care at the time of the offending. Apparently, both she and Mr Clingin have a history of mental illness and Ms Jones also suffers from cerebral palsy which impedes her ability to move freely.
On the night of 26 December 2010, Ms Jones and Mr Clingin had both retired to bed when she asked him to get her some cigarettes. He complied and when he handed them to her, Ms Jones stabbed him in the throat. As he got up to go to the telephone, presumably to call for help, she stabbed him twice more. The medical reports show that he received a single stab wound to each of the throat, chest, and back.
Apparently the first two of those wounds were the most significant. The stab wound to Mr Clingin’s throat damaged his trachea and impeded his breathing, requiring surgical intervention and intubation for approximately two days. The stab wound to his chest was to the right of his anterior chest area, penetrating the pleural cavity but not, according to the medical reports, damaging Mr Clingin’s lung.
Police attended the premises in the early hours of the morning of 27 December 2009 and took Ms Jones into custody. With an independent person present and, having received legal advice, she participated in a record of interview with the informant, Detective Senior Constable Leonard from approximately 3am on 27 December 2009. Ms Jones initially seemed to indicate that she wished to make a “no comment” record of interview, but later admitted to stabbing Mr Clingin. The informant gave evidence before me that he had difficulty communicating with her and, as I understand it, she was later placed in the care of mental health authorities.
Mr Clingin was taken from the scene to the Albury Base Hospital where he underwent surgery to repair the wounds Ms Jones had inflicted. After the surgery and a period of recovery he was discharged from the hospital on 5 January 2011.
Expert reports
At the hearing before me on 15 February 2012, the prosecution tendered a psychiatric report by Dr Kelly McKenna-Kerr and Dr Danny Sullivan dated 30 August 2011 which was marked as Exhibit B. Drs Sullivan and McKenna-Kerr had examined Ms Jones on 28 July 2011 and found that:
Despite long-term treatment via the Wodonga Adult Mental Health Service including case management and antipsychotic medication, Ms Jones displays ongoing psychotic symptoms. In particular she has a fixed delusional belief about being made unconscious at night. She clearly meets criteria for a diagnosis of paranoid schizophrenia.
In Dr Sullivan’s and Dr McKenna-Kerr’s opinions, Ms Jones also meets the criteria for a finding of mental impairment under the relevant provisions of the Act. They concluded:
She has a long history of paranoid schizophrenia and at the time of the alleged offence was experiencing bizarre and persecutory delusional beliefs which crystallised in the bizarre concern that her partner was harming her by rendering her unconscious, or “murdering her”. Although she was aware of the nature and quality of her conduct, she could not reason with a moderate degree of sense and composure about the wrongfulness of her actions.
Given her ongoing psychotic symptoms, Ms Jones was found unfit for trial at the time of that report, though Drs Sullivan and McKenna-Kerr expressed the opinion that if those psychotic symptoms could be brought under control, she may well be fit for trial at a later stage.
Indeed, by the time of the hearing on 15 February 2012, she was considered fit to stand trial. However, in the opinion of Dr Sullivan, who gave evidence at that hearing, the conclusions in the report of 30 August 2011 remained relevant and accurate in relation to the defence of mental impairment under the Act, in particular, that those conclusions remained applicable to Ms Jones’ circumstances.
In his report, dated 17 June 2011 and marked Exhibit C at the hearing on 15 February 2012, forensic psychiatrist Dr Kevin Ong reported that,
…despite psychiatric interventions including both oral and injectable depot medications, [Ms Jones] has for some years now had a fixed delusional belief in regards to being made unconscious at night with euthanasia injections. The intensity of these delusions appears to have fluctuated over time. Notably, she has not previously acted on these delusional beliefs.
Dr Ong considered the availability of the defence of mental impairment pursuant to s 20 of the Act and advised that, in his opinion, the defence would be available to Ms Jones. He noted that,
At the time of the alleged offence, she was aware of the nature and quality of her conduct in stabbing Mr Clingin. However, at the time she was quite clearly psychotic and labouring under particularly distressing delusional beliefs that made her unable to reason with a moderate degree of sense and composure about the wrongfulness of her actions.
I have no question, as a result of the combined effect of those reports, that Ms Jones was suffering from delusions and from a psychiatric illness at the time of the stabbing that prevented her from understanding the wrongfulness of her actions.
On 15 February 2012, and on the basis of the reports discussed, above, I determined that she could not reason with a moderate degree of sense and composure about whether her conduct, as perceived by reasonable people, was wrong. As a result, I directed that Ms Jones should be liable to a period of supervision under Part 5 of the Act. I ordered that a report be prepared pursuant to s 41 of the Act in order to determine the form of order I should impose as a result of that finding.
Section 41 of the Act provides, as follows:
41 Reports on mental condition of persons declared liable to supervision
(1) If a person is declared to be liable to supervision under Part 5, the appropriate person must arrange to have prepared and filed with the court that made the declaration a report, prepared by a registered medical practitioner or registered psychologist, on the mental condition of the person containing—
(a) a diagnosis and prognosis of the condition or an outline of the person's behavioural problems; and
(b) the person's response to treatment, therapy or counselling (if any); and
(c) a suggested treatment or other plan for managing the condition.
On 28 March 2012, I received a psychiatric report pursuant to s 41(1) of the Act from Dr Nina Zimmerman. In her conclusions in that report, Dr Zimmerman states that:
Given the extent of work that remains to be done… and the significant risk of relapse of illness (with the associated risks of interpersonal violence) until this work is well underway, I am of the opinion that Ms Jones would benefit from being placed on a Custodial Supervision Order. This would permit her to address her treatment needs in a safe environment with supervision and counselling available.
I do not feel that it is possible to be confident that Ms Jones does not pose a risk of serious endangerment when there are the positive risk factors [including a risk of violence to herself, to others, and of a relapse of mental illness].
I accept Dr Zimmerman’s opinions, as stated in that report.
Declaration and conclusion
The evidence presented by the Director of Public Prosecutions in this case is unchallenged. I accept the evidence and, as I said at the conclusion of the hearing on 15 February 2012, I find it appropriate that a verdict of “not guilty” be recorded in respect of the charged offence on the basis that Ms Jones was suffering from a mental impairment, as defined, at the time that the offence was committed.
I am satisfied that the relevant mental impairment is established on the basis of s 20(1)(b) of the Act, because at the time that she stabbed Mr Clingin, Ms Jones did not understand that what she was doing was wrong. I am, as a result of that conclusion, obliged to declare Ms Jones liable to supervision under Part 5 of the Act, and I do so.
On 15 February 2012 I ordered that, if appropriate as a result of the conclusions of the s 41 report (discussed above), a certificate should be prepared pursuant to s 47 of the Act demonstrating that services are available in custody to treat and supervise Ms Jones in the event that a custodial order is made. I received a s 47 certificate on 28 March 2012 and I am satisfied that such services are available.
I therefore order that:
(a) Sharna Jones be liable to a custodial supervision order pursuant to s 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic);
(b) that Sharna Jones be committed to the custody of the Victorian Institute of Forensic Mental Health; and
(c) that pursuant to s 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the nominal term of supervision of the order is 25 years, commencing on 26 December 2010.
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