R v Park
[2017] ACTSC 26
•27 January 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Park |
Citation: | [2017] ACTSC 26 |
Hearing Date: | 8 December 2016 |
DecisionDate: | 27 January 2017 |
Before: | Burns J |
Decision: | See [29]-[31] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – act endangering life – underlying mental illness – plea of guilty – terms of imprisonment. |
Legislation Cited: | Crimes Act 1900 (ACT) s 27(3) |
Cases Cited: | R v Verdins [2007] VSCA 102; 16 VR 269 |
Parties: | The Queen (Crown) Gyu Seon Park (Offender) |
Representation: | Counsel Ms K Mackenzie (Crown) Mr J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 122 of 2015; SCC 2 of 2016 |
BURNS J:
Gyu Seon Park, you have pleaded guilty to the following offences that:
(a)contrary to s 27(3)(e) of the Crimes Act 1900 (ACT) (the Crimes Act), on 10 September 2014, you used an inflammable substance in circumstances likely to endanger human life or cause a person grievous bodily harm; and
(b)contrary to s 27(3) of the Crimes Act, on 13 September 2015, you intentionally and unlawfully caused an explosion in circumstances likely to endanger human life or cause a person grievous bodily harm.
The maximum penalty prescribed for each of these offences is 10 years imprisonment.
A comprehensive Statement of Facts was tendered at the sentence hearing, but it will be sufficient if I give a brief summary of these offences.
On 10 September 2014, you had a disagreement over money that you believed was owed to you by a builder with whom you had previously contracted in your trade as a tiler. In an attempt to force the builder to pay the amount you believed was owing to you, you doused a restaurant owned by a relative of the builder with diesel fuel and threatened to light that fuel if they did not contact the builder. Two members of the public wrestled a cigarette lighter and a cigarette from your hands and restrained you until police attended.
With respect to the second offence, on 13 September 2015, you purchased a gas cylinder and took it to the McDonald’s restaurant in Braddon. At that time the restaurant was open and people were being served. You went into a toilet in the restaurant and opened the gas cylinder releasing flammable gas. You then told the manager of the restaurant that there was a gas leak. You returned to the toilet and ignited the gas causing an explosion. There was significant damage to the restaurant and people were still in the building when the explosion took place. You suffered burns in this incident which required hospital treatment.
You have a limited criminal history which is not particularly relevant for present purposes. A Pre‑Sentence Report was prepared for the sentence hearing. You are 42 years old and you were born in South Korea. Your father and your sister continue to reside in South Korea. You resided with your mother in Canberra prior to being remanded in custody and you expect to be able to return to that address when you are released. You reported that you have a son now 14 years old who resides with his mother in South Korea. You also reported having been married approximately 10 years ago, but the marriage ended the following year and your ex-wife now resides in China.
You relocated to Australia 12 years ago for employment opportunities and you are currently a permanent resident. You worked as a tiling contractor after coming to Australia and you were self-employed for the past five years. You experienced financial difficulties related to a lack of available work in the months leading up to you being remanded in custody and you had been in receipt of unemployment benefits.
You told the author of the Report that you commenced methylamphetamine use approximately two years prior to these offences and attributed your mental health issues and offending behaviour to the use of the substance. You said that you ceased using methylamphetamine prior to being remanded in custody.
I note that you have completed the Alcohol and Other Drug First Step Program on 29 February 2016. You then requested entry into the Smart Recovery Program, but on 25 October 2016 you reportedly declined to participate in that program, stating that you were only interested in attending one-on-one counselling through Directions ACT. The author of the Report noted that there may have been some misunderstanding about your entry in the Smart Recovery Program so that I am not prepared to infer that this apparent failure to participate in that program indicates a lack of interest in rehabilitation.
The Report notes that upon entry to the Alexander Maconochie Centre (AMC) on 2 October 2015, you were assessed and diagnosed with schizophrenia and a substance abuse disorder. You had been non-compliant with your medication at that time. The Report notes that as at December 2016, you were prescribed a monthly anti‑psychotic medication and your mental health was considered stable.
You have engaged with the Corrections Psychological Support Service during the current remand period, participating in one‑to‑one interventions and group programs. On 29 November 2016, you were anxious and distressed about upcoming court proceedings and you requested that your previous anti‑anxiety medication be recommenced. This indicates a degree of insight on your part and a willingness to address mental health issues.
You told the author of the Report that you agreed with the prosecution’s Statement of Facts. The author of the Report was of the opinion that you did not minimise your actions or seek to offer justification. You said that you were under the influence of methylamphetamine at the time of these offences and stated that you would be able to avoid further offending by abstaining from drug use in the future. You also expressed a degree of victim empathy and remorse for the harm that you had caused. You were assessed as at medium risk of general reoffending. Your primary risks of further offending include your substance abuse issues and your mental health issues. The author of the Report considered it important that you continue to address both of these issues.
After the first offence on 10 September 2014, you were interviewed by police and you told them that in late 2013 that you had started using a drug you knew as ice. You said that in February 2014 you returned to Korea to go to hospital because of depression. You told police you were also treated at that time for the use of ice. You said that you had returned from Korea about a month and a half prior to the first offence and you denied any ice use since returning to Australia. After you were arrested on 10 September 2014, police arranged for members of the ACT Mental Health crisis team to speak to you. Members of that team were able to report that you had a previous history with ACT Mental Health in April 2014 following an acute psychotic episode precipitated by use of amphetamines.
After you were arrested on 10 September 2014 you were held in custody. A magistrate requested that an assessment be undertaken of your fitness to plead. A report dated 12 November 2014 was prepared by Dr John Kasinathan, a Consultant Forensic Psychiatrist. You told him that the first offence involved you confronting a builder who allegedly owed you $70,000 for tiling work that you had done. You said that you had brought a can of diesel to threaten him into paying you some money. You told Dr Kasinathan that you had smoked methamphetamine prior to this offence and that you had used that substance daily from December 2013 onwards. You denied any delusional beliefs or auditory hallucinations at that time.
Dr Kasinathan noted that you had been admitted to the adult mental health unit at the Canberra Hospital from 7 to 11 April 2014, following threats to tie up your girlfriend and mother due to delusions of persecution, delusions of reference, auditory hallucinations and visual hallucinations. At that time you were diagnosed as having a methamphetamine-induced psychosis and psychotic medication was commenced. A Mental Health Treatment Order subjecting you to involuntary detention was made in April 2014. You absconded from the mental health unit and fled to Korea where you sought outpatient psychiatric treatment.
After being remanded in custody most recently, you were recommenced on an anti‑psychotic which resulted in complete resolution of your psychotic symptoms. Dr Kasinathan diagnosed you as suffering from schizophrenia, at that time in remission with treatment, and amphetamine use disorder. You were found fit to plead, but Dr Kasinathan stated that you exhibited some psychotic symptoms and possibly a reduced capacity to rationally weigh decisions due to your schizophrenia. He expressed the opinion that whilst there was minimal direct connection with your offending behaviour, your schizophrenia may have been relevant by way of impairing your judgment.
You suffered burns in the second offence on 13 September 2015. You were treated at Concord Hospital in Sydney where you told staff that you had intended to commit suicide by your actions. In a report dated 1 October 2015, Dr Idil, a Psychiatry Registrar at the hospital, said that the precipitating stress appeared to be resulting from the fact that you had been asked to leave the home of your mother and stepfather on 13 September 2015.
You said that you had asked other people in the restaurant to leave so that they would not be harmed. You gave a history of psychotic symptoms, including auditory hallucinations, of voices commenting on your behaviour. You described delusions of being controlled by the devil. On initial assessment, you presented as being perplexed and thought disordered. You described hallucinations and delusions. You admitted to recent use of methamphetamine. It was said that you recognised the importance of addressing your substance abuse. You were commenced on anti‑psychotic medication which resulted in your psychotic signs and symptoms resolving over several days.
The Report also notes that you were admitted to a psychiatric unit in Kalgoorlie in August 2015 after being found dehydrated in the desert. Dr Idil expressed the opinion that it was most likely that you had suffered another episode of drug-induced psychosis, however, he could not completely exclude the possibility of an underlying major psychiatric diagnosis such as schizophrenia, which would require a longer period of assessment.
Two reports from Dr Stephen Allnutt, a Forensic Psychiatrist, were tendered at the sentence hearing. The first Report is dated 25 March 2015. I will not set out the history recorded by Dr Allnutt. It was his opinion at that time that the predominant diagnosis was one of substance induced psychosis with a differential diagnosis of schizophrenia and psychotic depression. He said that differentiating between those conditions is difficult because methamphetamine induced psychosis can trigger schizophrenia-like symptoms and psychotic symptoms in a depressed person. Methamphetamine psychosis can be prolonged and persist for a lengthy period after discontinuation of the drug. He said that those with a genetic vulnerability to schizophrenia are more likely to develop a drug-induced psychosis when they use drugs and drugs can trigger the onset of the condition schizophrenia in those who are vulnerable. He considered that you probably commenced the use of methamphetamine as a means of self-medication with regard to your depression.
Dr Allnutt considered that you were suffering psychosis at the time of the first offence and thus your reasoning processes were impaired, although you maintained the ability to know the nature and quality of your actions. He considered that you were, however, significantly compromised in your capacity to know the full wrongfulness of your actions and to reason about the wrongfulness with a moderate degree of sense and composure.
In his second report dated 15 September 2016, Dr Allnutt, after comprehensive reference to mental health records and other documents, ultimately concluded that the preferable diagnosis was one of schizophrenia. After having reviewed material concerning the first offence, Dr Allnutt said that he was now of the view that your mental impairment at the time of that offence was likely not to an extent that you lacked the capacity to reason with a moderate degree of sense and composure about whether the conduct as seen by a reasonable person was wrong. However, he considered that the principles set out in the case of R v Verdins [2007] VSCA 102; 16 VR 269 were raised in that you probably had underlying psychotic symptoms that impacted on your judgment. With respect to the second offence, Dr Allnutt said that the interviews before and after the offending identified psychotic symptoms and that delusions and hallucinations had contributed to your decision‑making to self-harm.
I am satisfied on the balance of probabilities that you suffer from an underlying mental illness, being schizophrenia. Based on all of the material, I am satisfied that it is probable that your underlying mental illness has been aggravated by your use of amphetamines. I accept the opinion of Dr Allnutt that you probably commenced using amphetamines as a means of dealing with your underlying depression. I am satisfied that at the time you committed the first offence, your judgment was impaired by reason of your underlying mental illness, significantly aggravated by your use of methamphetamines. In my opinion, this reduces your moral culpability for this offence.
With regard to the second offence, I am satisfied that you were psychotic at the time you committed this offence as a consequence of your underlying schizophrenia, aggravated by methamphetamine use. I am satisfied that it was your intention in committing this offence to take your own life. I accept that you took steps to minimise the risk of harm to others at the time by telling the manager of the gas and suggesting that the restaurant be evacuated. In my opinion, your moral culpability with respect to this offence is significantly reduced by your mental illness.
To the extent that your use of amphetamines was causally related to these offences, I am satisfied that your use of amphetamines is related to your underlying mental illness. Where a drug has been voluntarily ingested by an offender causing psychosis and where there is knowledge of the likely effect of the drug, the resulting psychosis will not usually significantly mitigate an offence. This is not such a case. Your decision to commence using amphetamines and to continue their use was influenced by your underlying mental illness. In my opinion, your moral culpability with respect to these offences is reduced by your underlying mental illness, notwithstanding your amphetamine use. You are not an appropriate vehicle for general deterrence.
I take into account the contents of the various testimonials that were tendered on your behalf which speak of the fact that your conduct on the occasion of these offences was very much out of character. Many of them speak of the fact that your presentation prior to the second offence was consistent with psychosis, but that your presentation has completely changed since you were held in custody and subject to treatment.
Were it not for your mental illness, these offences would call for very significant terms of imprisonment as the predominant sentencing considerations would be punishment and general deterrence. That is particularly so with respect to the second offence. I note that at the time of the second offence you were on bail with respect to the first offence which would ordinarily call for a more severe penalty. The fact that you suffer from a serious mental illness which influenced the commission of these offences means that punishment and general deterrence should be ameliorated, although not entirely neglected. It is apparent that your underlying mental illness is capable of treatment and I am satisfied that so long as you accept treatment and abstain from the use of illicit drugs you are unlikely to reoffend. You have good prospects for rehabilitation.
I take into account your pleas of guilty. Your pleas were not early pleas, having been entered on the first day of your trial on 19 September 2016. Your pleas nevertheless had a utilitarian value and I am satisfied that they are evidence of remorse on your part. I accept that you have demonstrated remorse to the author of the Pre‑Sentence Report and to others. I accept that in a case such as this where there is complex psychiatric evidence, the fact that a plea is not entered at an early time does not necessarily indicate a lack of remorse. I will reduce by approximately 10 per cent the otherwise appropriate sentences in order to reflect your pleas.
As at 8 December 2016, you had spent 507 days in custody. I will backdate the commencement of the sentences that I will impose to take into account pre‑sentence custody. In my opinion, sentences of imprisonment are the only appropriate sentences with regard to these offences, even taking into account your underlying mental illness. I will, however, significantly reduce the sentences that I would otherwise have imposed because of the underlying mental illness.
Sentence
With respect to the first offence, occurring on 10 September 2014, I record a conviction and you are sentenced to 21 months imprisonment commencing on 20 July 2015 and expiring on 19 April 2017.
With respect to the second offence, occurring on 13 September 2015, I record a conviction and you are sentenced to 32 months imprisonment commencing on 20 April 2016 and expiring on 19 December 2018.
The aggregate sentence of imprisonment which I have imposed is therefore one of 41 months, commencing on 20 July 2015 and expiring on 19 December 2018. I set a non-parole period of 21 months, commencing on 20 July 2015 and expiring on 19 April 2017.
I recommend that the Sentence Administration Board obtain a further psychiatric opinion about your mental health condition prior to any determination to release you on parole.
[Speaks directly to the offender]
Mr Park, the earliest date on which you may be eligible for release is 19 April this year. It will be up to the Sentence Administration Board to determine whether you are to be released at that time or at a later time. You must avoid all use of illicit drugs and you must also continue to accept treatment for your mental health in order to avoid any further offending. It is heartening to note from the reports that you apparently have a degree of insight into your illness.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 15 February 2017 |
0