R v Munze (No 3)
[2020] VSC 846
•15 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0226
| THE QUEEN | Crown |
| v | |
| WERNER MUNZE | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 December 2020 |
DATE OF JUDGMENT: | 15 December 2020 |
CASE MAY BE CITED AS: | R v Munze (No 3) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 846 |
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CRIMINAL LAW – Murder – Accused 84 years old with acquired brain injury and dementia – Accused found unfit to be tried pursuant to Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Accused found at special hearing to have committed the offence – Declared liable to supervision – Non-custodial supervision order made.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Hevey | Office of Public Prosecutions |
| For the Accused | Mr P Kounnas | McFarlane Criminal Lawyers |
HER HONOUR:
On 10 December 2020 I made a non-custodial supervision order (NCSO) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act) with respect to Werner Munze, indicating that I would publish my reasons for doing so later. These are those reasons.
Procedural History
On 2 March 2019 Mr Munze, then aged 83 years, was found on the floor of his matrimonial home lying next to the body of his deceased wife. He was arrested and taken to hospital. He was later charged with murder.
Subsequent neuropsychological testing and psychiatric assessment revealed that he suffers from significant cognitive impairment arising from multiple causes.
On 18 May 2020 I determined that Mr Munze was unfit to stand trial and, further, that he was not likely to become fit to stand trial within the ensuing 12 months.[1]
[1]R v Munze [2020] VSC 272.
On 30 June and 1 July 2020 I heard the special hearing of the murder charge sitting as a judge alone, pursuant to the temporary measures of Division 3 of Part 11 of the Act. On 12 August 2020 I found that Mr Munze had committed the offence of murder.[2] The facts of the case, which were not disputed, are described in detail in that decision.
[2]R v Munze (No 2) [2020] VSC 481.
On the same date I declared him liable to supervision under the Act.[3] Having done so, s 26 of the Act mandates that I make a supervision order in respect of him.
[3]The Act, s 105(a).
Section 47 of the Act requires the Court to request the Secretary to the Department of Health and Human Services to provide the Court with a certificate of available services. Section 41 of the Act requires the Court to receive and consider the report of a registered medical practitioner or registered psychologist as to the mental condition of the person declared liable to supervision.
The Court has received two such certificates and two such reports.
On 2 October 2020 the s 47 certificate stated that there was, at that time, no appropriate facility available for the treatment and supervision of Mr Munze. The s 41 report of Dr David Trainor recommended that the welfare of Mr Munze and the community generally would be best placed by his accommodation in a secure residential aged care facility that could meet his medical and psychiatric needs. The report requested further time to allow the identification of a suitable facility.
With the consent of the parties, the matter was adjourned.
On 4 December 2020 the court received the second s 47 certificate and s 41 report. The effect of that material is that Mr Munze is suitable for placement at Monash Health’s Kingston Centre psychogeriatric nursing home and that there was a place available there for him. Given his major neurocognitive disorder, major depressive disorder and probable coinciding neurodegenerative disorder, Dr Trainor stated that in his opinion:
… with respect to the welfare of Mr Munze and the community in general, that Mr Munze is suitable for a NCSO, which could serve to provide specialist forensic input to Monash Health Aged Care team, ensuring that any risk of violence is appropriately managed, and to provide liaison with the court.[4]
[4]Section 41 psychiatric court report of Dr Trainor, dated 3 December 2020, [28].
To this end, Dr Trainor proposed conditions for the NCSO.
On 10 December 2020 both parties submitted that the Court should accept the recommendation of Dr Trainor.
Analysis
In determining the appropriate supervision order to make, I have had regard to the principle of parsimony in s 39 of the Act as well as the factors in s 40(1). I also considered the material specified in s 40(2) of the Act, given that the NCSO had the effect of releasing Mr Munze from custody.
Beyond the expert opinion of Dr Trainor, I have had regard to the s 42 reports of John Petz and Gail Petz. Given their relationship to both the deceased and Mr Munze, their trauma and distress is understandable. They have conducted themselves throughout the court proceedings in an exemplary manner.
On the basis of all the material, and noting the united position of the parties, I am satisfied that a NCSO with appropriate conditions should be imposed. Mr Munze is an elderly, ill man who needs supervision and complex care. He is now little danger to anyone.
After discussion with the parties, I am of the view that given the age and prognosis of Mr Munze, there is little utility in ordering a review of the NCSO in the short-to-medium term.[5] It is not to be expected that Mr Munze will ever be in a position to argue that he should be released from it. Through various mechanisms provided for by the Act, the Court retains oversight of the order and his progress. Further, should there be any unforeseen issue that arises, the matter can be brought before the Court.
[5]Section 35(1) of the Act mandates a major review three months prior to the expiry of the nominal term.
Conclusion
The orders of the Court are:
1.Pursuant to s 26(2) of the Act, a NCSO is made in respect of Mr Munze with the following conditions:
a.That Mr Munze be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or his or her delegate.
b.That Mr Munze resides in a location known and approved by the Authorised Psychiatrist of the VIFMH or his or her delegate.
c.That Mr Munze abides by the lawful directions of the Authorised Psychiatrist of the VIFMH or his or her delegate.
d.That Mr Munze complies with treatment testing and attends appointments as directed by the Authorised Psychiatrist of the VIFMH or his or her delegate.
e.That Mr Munze abstains from the abuse of alcohol and the use of illicit drugs.
f.That Mr Munze does not leave the State of Victoria without the written permission of the Authorised Psychiatrist of the VIFMH or his or her delegate.
2.The nominal term of the NCSO is 25 years.
3.The NCSO commences 2 March 2019.
4.Pursuant to s 35(1) of the Act, a major review is to take place three months prior to the expiry of the nominal term.
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