R v Kingi
[2013] VSC 170
•22 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0098 of 2012
| THE QUEEN |
| v |
| BARRY LEE KINGI |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2013 | |
DATES OF JUDGMENT: | 22 February, 12 April 2013 | |
CASE MAY BE CITED AS: | R v Kingi | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 170 | |
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CRIMINAL LAW – Plea of not guilty by reason of mental impairment – One charge of murder and three charges of intentionally causing serious injury – Consent mental impairment – Trial by judge alone – Accused found not guilty by reason of mental impairment – Report on mental condition furnished pursuant to s 41 of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 – Custodial Supervision Order for nominal term ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC | Office of Public Prosecutions |
| For the Accused | Mr M. Dempsey | Victoria Legal Aid |
HIS HONOUR:
Barry Lee Kingi is charged on indictment with one count of murder and three counts of intentionally causing serious injury. He has pleaded not guilty to each count. His plea of not guilty is put on the basis that at the time of the events giving rise to these charges he was suffering from a mental impairment which had the effect that he did not know the nature and quality of the conduct and did not know the conduct was wrong. This defence to the charges in the indictment arises under s 20 of the Crimes (Mental Impairment and Unfitness to the Tried) Act 1997 (“the Act”). That section provides:
(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.
By agreement between the prosecutor and counsel for the accused, the matter proceeded before me alone pursuant to s 21(4) of the Act.
The events giving rise to these charges occurred on 15 March 2012 at a boarding house at 32 Salisbury Road, Ashwood owned by Ms Tuyet Vu and operated by her sister Ms Lisa Vu who also resided there with her children. Lisa Vu and her children were injured in this incident. The deceased man, Jared Clinton, also resided there and had been there for some time at the time of his death. The accused man began residing at these premises some weeks before these incidents and in the period prior to 15 March 2012 he had been acting unusually.
After some difficulties with the conduct of the accused man, on 14 March 2012 Lisa Vu told him that he would have to leave the premises after he damaged an internet connection plug. The accused was angered by that. At about 11:00 pm on 14 March 2012, the accused was seen lying on the floor near a door mumbling to himself. In the early hours of the following morning he was knocking on the bedroom doors of other residents. At about 4:00 am, having knocked on the deceased man’s door, a physical altercation occurred between the accused and the deceased which included the accused assaulting Mr Clinton. The accused then dragged Mr Clinton from the doorway of his bedroom out into the street where it would seem that more blows were struck and more injuries inflicted which were fatal. The accused left the deceased man lying in the street with a substantial amount of blood over his head and face. He was later found by police who were called to the scene. He was taken to the Alfred Hospital but died as a result of his injuries at 3:50 am on 16 March 2012.
An autopsy was conducted on the deceased man on that same day. The pathologist determined that the causes of death were the severe injuries to the head exacerbated by the injuries to his abdomen.
As I follow it the accused then re-entered the house, began striking objects in the house and then attacked Ms Lisa Vu and her two children in the room they occupied. Witnesses heard the sounds of that attack and of both Ms Vu and her children screaming for help. Vincent Vu, who was three years old at the time, was then seen running across the road being chased by the accused.
Ms Vu, who is the victim identified in Charge 2 suffered lacerations and bruising to her head including to both eyes. All these injuries were the result of blunt trauma. She was originally hospitalised for three days but was subsequently readmitted as a result of her injuries. She suffered amnesia and also underwent two weeks’ treatment at the Caulfield Memory Rehabilitation Centre.
Her son Jeremiah, who is now 15 years of age, suffered injuries in the attack by the accused to his head and body was hospitalised for two weeks. As a young child, it is clear that he has suffered significantly from this incident. He has suffered from post-traumatic amnesia and his conditions remains the subject of monitoring.
The youngest child also attacked by the accused, Vincent Vu, was then 3 years of age. He had head and bodily injuries including an 11cm curved abrasion over the right side of his face, other abrasions and bruising with the bruising being evident on all limbs though fortunately he suffered no fractures.
Shortly after 4:30am, the police located the accused in the driveway of the premises and arrested him. He made no significant response to later interviews from them beyond stating he was “acting on a self defence theme”.
With the accused in custody and charged in relation to these matters, Victoria Legal Aid, which was providing him with assistance, commissioned a report from forensic psychiatrist, Dr Danny Sullivan concerning the psychiatric condition of the accused man and the availability to him of a defence of mental impairment. Dr Sullivan assessed the accused on 15 July 2012 at the Melbourne Assessment Prison. Having spoken to the accused and reviewing his history, Dr Sullivan provided his report on 16 August 2012, concluding that at the time of these offences he was “floridly psychotic and manic.” He then said:
Having considered the criteria which are set out in s 20 of (the Act), I believe that Mr. Kingi was at the time of the alleged offences mentally impaired, and due to a psychotic episode was unable to reason about the wrongfulness of his conduct with a moderate degree of sense and composure.
He also concluded that the accused was fit to be tried.
Dr Sullivan’s conclusions resulted in the Director of Public Prosecutions obtaining a report from Forensicare dated 3 December 2012 and prepared by Dr Ahmed Mashhood. Both Dr Sullivan and Dr Mashhood gave evidence before me attesting to the correctness of their conclusions.
Dr Mashhood assessed the accused on 24 October 2012. He concluded that the accused had an established diagnosis of a psychotic disorder which featured symptoms of schizophrenia and bipolar affective disorder. The diagnosis was established years before this offending. At the time of the assessment, the symptoms of the accused had responded well to pharmacological treatment and Mr Mashhood agreed with Dr Sullivan that the accused was fit to be tried. However, Dr Mashhood was of the view that at the time of the offences, the accused was suffering from a mental impairment that resulted in him not knowing the nature and quality of his actions. He also concluded that the accused could not reason with a moderate degree of sense and composure about whether the conduct was wrong.
It is significant to note that the conclusions of both psychiatrists rely, among other things, on several factors:
(a)That the accused had a pre-existing psychotic disorder for which he was previously treated and medicated;
(b) His behaviour at and immediately preceding these terrible incidents coincides with earlier behaviour in that it is consistent with his condition though never previously resulting in such consequences;
(c) There was no attempt by him to conceal what he had done or to flee the scene;
(d)It would appear that he had not consumed alcohol or illicit drugs.
Thus, there being no argument that the accused man was, at the time of the killing of Mr Clinton and committing the offences in charges 2, 3 and 4, suffering from a mental impairment such that, at least, he did not know that what he was doing was wrong pursuant to s 20(1)(b) of the Act, I am satisfied on the balance of probabilities that I should direct that a verdict of not guilty by reason of mental impairment be recorded and I do so pursuant to s 21(4) of the Act. I need not resolve whether Dr Mashhood is also correct in concluding that s 20(1)(a) applies in that the accused did not know the nature and quality of the conduct.
On 22 February 2013, I delivered this ruling thus far and ordered that Barry Kingi is liable to a supervision order under s 26 of the Act and that a report pursuant to s 41 of the Act, pertaining to Kingi’s prognosis and treatment, be provided to the Court. On 19 March 2013, I received that report, written by Drs Ahmed Mashhood and Prashant Pandurangi of the Victorian Institute of Forensic Mental Health.
That report confirms a diagnosis of schizoaffective disorder. This disorder is currently being managed through medication. However, the report also identifies the illness as being chronic, remitting and as being likely to be affected by small changes in medication. The long-term prognosis seems unclear and will be affected by the course of the illness and continued adherence to medication. I adopt the statement in the report that the “very serious nature of the offences indicates that Mr Kingi could pose a serious risk to others in case he becomes acutely unwell in the future. Therefore, he needs a comprehensive risk assessment and management in a secure setting.” The report outlines issues that will need to be addressed, methods for doing so and recommends that this can only be achieved by way of a Custodial Supervision Order.
Therefore, having been furnished with a certificate of available services pursuant to s 47 of the Act, I order that:
(1)Barry KINGI is liable to a custodial supervision order pursuant to s 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
(2)Barry KINGI is committed to the custody of the Victorian Institute of Forensic Mental Health.
(3)Pursuant to s 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the nominal term of the supervision order is 25 years from 15 March 2012, which includes the declared period of 393 days of pre-sentence detention.
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