R v Lloga
[2011] VSC 615
•25 November 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0093 of 2011
| THE QUEEN | |
| v | |
| DIELL LLOGA | Accused |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2011 | |
DATE OF RULING: | 25 November 2011 | |
CASE MAY BE CITED AS: | R v Lloga | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 615 | |
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CRIMINAL LAW – Murder – Plea of not guilty by reason of mental impairment – Consent hearing - Section 21 Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 – Circumstances of offending – Established diagnosis of mental illness - Report furnished pursuant to s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act – Supervision Order imposed - 25 year nominal term.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Gilligan | Office of Public Prosecutions |
| For the Accused | Mr M. Dempsey | Victoria Legal Aid |
HIS HONOUR:
Diell Lloga, on 12 September 2011 you pleaded not guilty before me to the murder of Pedro Arcos Vazquez, at Clarinda in Victoria on 9 November 2010, on the basis of mental impairment.
The matter proceeded as a hearing pursuant to s 21(2)(b) and sub-s (4) of the Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997 (“the Act”). That provision allows me to determine whether a person charged on an indictable offence was suffering from mental impairment at the time of the conduct constituting the offence occurred. The pre-requisite to hearing such a case without a jury is the agreement of the prosecution and defence that the proposed evidence establishes the defence of mental impairment.
“Mental impairment” is defined in s 20(1) of the Act in the following terms:
“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.”
The defence of mental impairment is to be established on the balance of probabilities.
Section 21(4) of the Act 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 your case, Mr Lloga, the prosecution and defence have agreed that I should hear the case and I regard it as appropriate to do so in the circumstances.
The facts of the case were opened by Crown Prosecutor, Mr Gilligan, and the written opening became Exhibit 1 on the plea.
In setting out the facts of the case, I will call heavily upon the matters contained in that opening, but there are some matters that I will add to it.
At about 9.30am on 9 November 2010, Pedro Arcos-Vazquez died as a result of multiple sharp-force injuries to the head, neck, face and arms after being assaulted by you in the boarding house at 142 Bourke Road, Clarinda where you both were living.
The deceased was aged 41 years and you were then aged 23 years. You are now 24 years of age. You and the deceased were residents of the boarding house at 142 Bourke Road, Clarinda, as I have already outlined. The two of you developed a friendship.
On two occasions prior to the 9 November 2010, police were called to the boarding house as a result of altercations that occurred between the two of you.
You have a history of mental illness commencing at the age of 16 years. You had been diagnosed as suffering from psychosis and had been treated with common anti-psychotic medications. On 9 November 2010, you presented at the Moorabbin Police Station where you confessed to killing a man.
Your behaviour was bizarre and you appeared to be suffering mental health issues. You ultimately appeared to withdraw the admission that you made and you were released.
On returning to the boarding house, you told another resident that, “I slit his throat and his head is hanging on by his spinal cord”. You then showed the resident into the deceased’s room where the deceased lay dead on the bed. A call was made to triple zero. It was not, however, effective because there were difficulties about the address that was given and the police, in fact, attended the wrong address on that occasion.
However, you told another person on 11 November about what you had done and showed her the body of the deceased. She contacted the police and on 11 November 2010 at 12.06pm, you were arrested and conveyed to the Moorabbin Police Station and later charged with murder. The scene was examined and photographed.
You were interviewed by the police and although during that interview there were a number of responses which you made which were clearly indicative of you suffering from some form of mental illness, in general you told the police what had happened.
Homicide Squad detectives conducted a video recorded interview with you in the presence of an independent third person and you made the following admissions. During the day of 9 November 2010, you attended your general practitioner, Dr Michael Kozminsky, where you were prescribed medication to assist you in quitting smoking. The drug was Champix.
After filling the prescription at discount drug store, Bourke Road, Clarinda, you then took the prescribed amount. You also took your regular medication, Seroquel, which was prescribed for your mental health issues.
After a short time, you started to hear voices and saw blackened out eyes on passers-by. You became agitated and started to pace around your room.
The voices were saying to you, “You have to do this. You have to kill Pedro to make the house safe for everyone else”. You described the voices as being Satanic, like demon voices.
At about 10.00pm, you told the police you took a butcher’s meat cleaver from the kitchen drawer, walked to the deceased’s room and kicked the door in.
The deceased was watching television in bed at the time and you entered the room and held him down and began to saw through his neck. The deceased attempted to fight you, however he was over-powered and received the defensive stab wounds to his arms.
You stated during this attack the deceased screamed for his life as you cut through his neck. You described the actions of cutting his neck as a rolling chop type action.
During the attack you received a little slice off your left thumb nail and skin. You left the room not being aware if the deceased was alive or dead.
You climbed the stairs to the upstairs bathroom where you showered. After changing your clothing, you mopped up the floor of blood in the bathroom, cleaned the meat cleaver and placed it in the vanity unit in the downstairs bathroom. You took your bloodstained clothes along with handwritten notes and placed them into the front wheelie bin. Having decided that some children might look into the bin and see the clothes, you removed them and took them to the rear yard. You dug a small hole in the vegetable patch and buried the clothes, which consisted of shorts and a singlet along with other handwritten notes in the garden. You then planted a lemon branch over the clothes. Shortly after that, you went to the Moorabbin police station, which I have already described.
A post-mortem examination was conducted on 12 November 2010 by Dr Michael Burke, forensic pathologist. It was revealed that the cause of death was incised injury to the neck. A total of 14 facial head and neck injuries were observed during the post-mortem. As a result of scientific testing that was done, death was found to have been likely to have occurred on 9 November 2010 in the afternoon or evening.
You were subsequently before me. Evidence was given by the informant, who attested to the accuracy of the opening. On the hearing I received a report from Dr Danny Sullivan who examined you and his report dated 21 March 2011 became Exhibit 3 on the plea. I heard from Dr Claire McInerney from Forensicare who has been responsible for your care and I received the report from her dated 15 July 2011 which became Exhibit 2. Dr McInerney confirmed in detail in evidence the contents of her report. Through her, the report of Dr Sullivan with which she agreed was tendered in evidence.
Dr Sullivan under the heading “Opinion and Recommendations” said:
“Mr Lloga is a 23 year old single man charged with murder. His upbringing was reportedly affected by encopresis (incomplete bowel control in childhood) and resulted in teasing and parental violence. His father reported that he developed a psychotic illness and Mr Lloga was subjected to and witnessed his violence and psychotic behaviour until his parents separated. In secondary school he developed substance use problems and behavioural issues in mid-late secondary school and left school prematurely. Since then he has had intermittent manual employment, unstable accommodation and difficulties with substance use and mental health.
He has an established diagnosis of mental illness incorporating delusional beliefs, hallucinatory experiences and mood disturbance. There is a history of past contacts with mental health services, involuntary admission and case management. He had presented with affective disturbance as well as psychotic features and the diagnosis was most likely of schizoaffective disorder.
He has a lengthy history of polysubstance abuse, predominantly of cannabis and alcohol, but also hallucinogens and stimulants. In the period of time beforehand, he has consistently reported abstinence from cannabis, including on the day of the alleged offence through his general practitioner. Evidence from police who saw Mr Lloga on the day before the alleged offence noted disordered behaviour and on one occasion intoxication. Late on 9 November 2010, Mr Lloga was seen by a member of the police force and a psychiatric nurse, who did not observe features of intoxication.
It is worth adding that Mr Lloga reported that his mental state was more unstable both after ceasing cannabis and when commencing then varenicline (Champix, a medication reported to have significant neuropsychiatric side effects); and that he had told the psychiatric nurse on 9 November 2010 that he had not been complaint with prescribed anti-psychotic medication. These elements related to a list of drugs and prescribed medications, if accepted, may be relevant in his mental instability, however there is no clear evidence that suggests his disordered mental state was essentially caused by drug intoxication or withdrawal.
There is no clear evidence of any personality disorder clinically relevant cognitive impairment or other diagnosis.
The preceding relationship with the victim was ambivalent. At times Mr Lloga was friendly with Pedro and at times they had significant altercations involving police attendance. Both parties were perceived by police at various times to be in the instigator for altercations and the intoxication of Mr Lloga and the victim was considered by police to be a significant factor in these altercations.
Around the time of the alleged offence, Mr Lloga’s mental state was disturbed and the brief of evidence suggests that he exhibited features of hypomania (pressured speech, irritability, flow of ideas, disorganised thoughts and behaviour) and reported features of psychosis (persecutory delusions, auditory and visual hallucinations). The circumstances of the killing, as he describes were not in response to a direct threat from the victim, but were more related to Mr Lloga's psychosis. His behaviour following the alleged offence was bizarre. Although he concealed his clothes, he attempted to plant a lemon tree and left a flower on the door handle and did not make any concerted effort to dispose of the body, his account is essentially consistent with forensic and pathological evidence.
I have considered the evidence and the criteria set out in s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. His behaviour was disorganised and his presentation to a doctor, nurse and policeman on the day were consistent with disordered thinking and behaviour as part of the psychotic episode, and subsequent behaviour and symptoms are also consistent with this. His police interview was rambling, over inclusive, and upon reception into prison, he was considered psychotic. At the time of the alleged offence, I believe that Mr Lloga was aware of the nature and quality of his conduct, but due to mental illness, was unable to reason with a moderate degree of sense and composure about the wrongfulness of his conduct. I believe that a mental impairment defence is available to Mr Lloga.”
Dr McInerney, in her report, said first of all under the hearing “Opinions and recommendations” at paragraph 13.1 regarding diagnosis:
“Mr Lloga has an established diagnosis of severe enduring mental illness, namely, schizoaffective disorder. This is a condition that combines features of schizophrenia and bi-polar affective disorder.
The diagnosis of schizo affective disorder was established several years prior to the alleged index events.
Mr Lloga’s symptoms have included false (persecutory and grandiose) beliefs, abnormal perceptual experiences, (hearing voices), and severe disorganisation of thought and behaviour.
All available evidence strongly suggests a relapse of his mental illness at the materiel time. The most likely reason for the relapse is that he was taking an inadequate dose of anti-psychotic medication.
Other potential contributing factors are alcohol and substance misuse and possibly, the recent prescription of Varenicline. Varenicline was prescribed on the day in question. It is a medication that assists with smoking cessation. There are some case reports of this medication possibly precipitating psychotic episodes. Notwithstanding this, I do not believe that either the prescription of Varenicline or alcohol and substance use, either alone, or in combination, solely caused the psychotic episode.”
Then, having dealt with both the current mental state and the fitness to stand trial, Dr McInerney continued at paragraph 13.4 regarding the defence of mental impairment:
“I am satisfied that Mr Lloga has a mental impairment defence available to him as per the criteria in s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
Although Mr Lloga likely knew the nature and quality of his conduct, he was significantly disordered in mood, thought, judgment and behaviour as a result of relapse of psycho-affective disorder. His capacity for rational thought was severely constrained.
It is my opinion that as a result of active mental illness, he was unable to reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.
I have considered relevant factors that could raise doubt regarding this opinion, including the pre-existing animosity between Mr Lloga and the victim, however, on balance I am of the opinion the defence of mental impairment is available to him.
The facts supporting this opinion include:
·the established diagnosis of a severe and enduring mental illness that pre-dates the alleged index offence by several years;
·the similarity in his presentation around the time of the index events, to his previous episodes of illness;
·his consistent reports of delusions and hallucinations (focussed on the victim) in the weeks, days and hours preceding the index events, including delusional beliefs that he was required to kill the victim in order to avert catastrophic outcome or to improve his own life;
·the essential absence of attempts to conceal the offence;
·the several accounts of bizarre behaviour around the materiel time;
·and the consistent evidence of active mental illness from several mental health assessments around the material time.”
It follows that in your case, Mr Lloga, on the critical issue, the evidence is all one way. Under the circumstances, I regard it as being appropriate to direct that a verdict of not guilty because of mental impairment be recorded.
The ground of that mental impairment is that pursuant to s 21(b) of the Act, you, Diell Lloga, at the time you killed Pedro Arcos Vazquez, 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.
It follows next that I am obliged to declare you liable to supervision under Part 5 of the Act and I do so. I requested a report pursuant to s 41 of the Act in order to determine what form of order I should impose and, if appropriate, a certificate pursuant to s 47 of the Act. I received a report from Dr Ann Brennan dated 29 September 2011 pursuant to s 41, and I have received a certificate in relation to available services pursuant to s 47.
I am satisfied that the form of order is that Diell Lloga should be liable to a Custodial Supervision Order. I make that order and I order that:
· Diell Lloga be liable to a Custodial Supervision Order pursuant to s 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
· that Diell Lloga be committed to the custody of the Victorian Institute of Forensic Mental Health; and
· that pursuant to s 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act the nominal term of supervision is 25 years to date from 11 November 2010. I make those orders.
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