R v Penrose
[2007] VSC 582
•10 September 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT GEELONG
CRIMINAL DIVISION
No. 1441 of 2007
| THE QUEEN | |
| v | |
| SHAE JANET PENROSE | Accused |
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JUDGE: | Coghlan J | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 10 September 2007 | |
DATE OF RULING: | 10 September 2007 | |
CASE MAY BE CITED AS: | R v. Penrose | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 582 | |
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Criminal law – s.21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Trial by judge – Directed verdict of not guilty by reason of mental impairment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman S.C. | Office of Public Prosecutions |
| For the Accused | Mr G. Mullaly | Victoria Legal Aid |
HIS HONOUR:
Today Shae Janet Penrose pleaded not guilty to the murder of James Richard Telfer. The matter proceeded before me as a hearing pursuant to s.21(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, (“the Act"). This provision allows the trial judge to determine whether a person charged with an indictable offence was suffering from mental impairment at the time the conduct constituting the offence occurred.
A prerequisite to the judge's role in hearing such a case without a jury is the agreement of the prosecution and the defence that the proposed evidence establishes the defence of mental impairment.[1]
[1]See s. 21(4) of the Act.
Mental impairment is defined in s.20(1) of the Act in these 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).
Sub-section (2) of s.20 provides:
(2)If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
As it is the second limb of the definition of mental impairment that the court is concerned with in this case, if the trial judge is satisfied on the balance of probabilities that the person charged with the offence was suffering from mental impairment at the relevant time, a verdict of not guilty because of mental impairment may be required. If the trial judge is not so satisfied an order that the charge be heard by a jury must be made.
The facts surrounding this incident and the background to it have been set out in the careful opening of Mr Hillman SC on behalf of the Crown and have been deposed to by the informant. They are in any event contained in the depositional material. They may be briefly stated.
The accused was born on 18 June 1980 in Maryborough, Victoria. When she was in Byron Bay in 1996 she suffered an episode that resulted in her mother and father flying to Byron Bay, searching for her and subsequently having her committed to a psychiatric facility. Since that date, the accused has been diagnosed with a range of mental illnesses including drug induced psychosis but more relevantly, chronic paranoid schizophrenia.
Either as a feature of that disorder or in combination with it, she has been involved in substance abuse, namely cannabis, alcohol and opioids over a long period of time.
In the latter part of 2005 or the early part of 2006 the accused met the deceased, James Richard Telfer. Ms Penrose lived with the deceased in his flat at Norlane. Prior to 19 June 2006 however, they had been living together for about four weeks in a house at 6 Elm Court, Waurn Ponds. That house had been arranged for them as interim emergency accommodation by the Salvation Army.
The accused was under treatment for her psychiatric illness and on about
15 June 2006 sought treatment because of the way she was feeling. She was given an injection and prescribed a sedative.
On 19 June 2006 the accused and Mr Telfer had been drinking alcohol and smoking cannabis in their home. Their neighbour, Gerard McKay, had been with them between about 1 p.m. and 4 p.m. He left their house at that time as the couple had commenced to argue.
At about 5.30 p.m. the deceased went to Mr McKay's home at 11 Maple Street, Waurn Ponds. He commenced drinking with him and they were later joined by the accused. The three of them continued to drink for a number of hours. The accused and the deceased were arguing constantly.
At about 8 p.m. the accused contacted her father who lived in Gippsland and told him that people from “triads” or something similar were coming to get her. The accused's father spoke to the deceased and urged him to get psychiatric assistance for Ms Penrose. The deceased refused, saying that he could take care of her.
Mr Penrose later assured his daughter that he would get assistance for her.
Mr Penrose made attempts to contact the police but was unsuccessful. He contacted Mr McKay by telephone and was told that his daughter had stabbed the deceased, who appeared to be dead.
The accused had in fact got a steak knife from Mr McKay's kitchen and stabbed the deceased a number of times. There were a total of nine stab wounds around the neck, one of which severed the carotid artery. After stabbing the deceased, the accused returned to her home and packed her bag awaiting the arrival of the police. The accused was arrested shortly after 8.35 p.m. on 19 June 2006.
She was interviewed on 20 June 2006. Before being found unfit to be interviewed further, she said that she killed the deceased because he threatened to rape and kill her children. She is childless. She has been in custody since her arrest.
On 22 June 2006, she was transferred to the Thomas Embling Hospital where she was detained until about 20 August 2007 when she was then transferred to the Dame Phyllis Frost Centre. That transfer was as a result of administrative rather than medical reasons. Her treating psychiatrist has been Dr Russ Scott who gave evidence before me in accordance with a detailed report he had prepared[2]. Dr Lester Walton, a very experienced forensic psychiatrist also gave evidence before me in accordance with a detailed report he had prepared[3]. Dr Walton had prepared that report at the request of the solicitors for the accused.
[2]Exhibit 4 tendered on the plea.
[3]Exhibit 3 tendered on the plea.
Both psychiatrists were of the opinion that Ms Penrose was unfit to stand trial. They also agreed that Ms Penrose suffered from chronic paranoid schizophrenia, accompanied by a history of substance abuse and substance dependence. Both doctors were of the opinion at the time of this episode, Ms Penrose was floridly psychotic. It followed that they both accepted that at the time of the episode, she was unable to reason with a moderate degree of sense and composure about whether her behaviour, as perceived by reasonable people, was wrong.
The prognosis for Ms Penrose is such that she will require ongoing treatment for a long period of time and her detention at the Thomas Embling Hospital will be necessary.
Given that the evidence is uncontested and in any event, totally persuasive, I am satisfied pursuant to s.21(4) of the Act that the evidence establishes that the defence of mental impairment has been made out and I direct that a verdict of not guilty because of mental impairment be recorded. The ground of mental impairment is that pursuant to s.20(1)(b) of the Act, at the time she killed Mr Telfer, Ms Penrose did not know that the conduct was wrong, that is, she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
It next follows that I declare Ms Penrose as liable for supervision under Part 5 of the Act. The supervision order which I make is a custodial one. Because I have received a report under s.47 of the Act that a bed will be available at Thomas Embling Hospital tomorrow (11 September 2007), I commit Ms Penrose into custody at that hospital from that date and direct that she be held in custody in the meantime, there being no other feasible possibility. Both of the psychiatrists recommended a custodial supervision order and no submissions were made to the contrary. I fix a nominal period for the order of 25 years to commence from 19 June 2006. I order that a report referred to in s.41 of the Act be prepared within 30 days. I make an order for the retention of the forensic sample and if the Crown prepare the draft order I will sign it.
In this case, Mrs Carolyn Dawn Telfer provided a report for the purpose of s.42 of the Act. That section allows family members to comment on the conduct of the accused and the impact on family members. It goes without saying that the effect on the Telfer family has been profound both to herself and for her surviving son Simon. They have both been seriously affected by the death of James Telfer. They are both having great difficulty in getting on with their lives and are affected by the frenzied nature of the attack on James Telfer.
Mrs Telfer feels that she has been let down by the mental health system. Mr Mullaly who appeared for Ms Penrose told me that the Penrose family have the same feelings both in relation to Mr Telfer and their daughter. I am not in a position to make a finding about the conduct of those authorities but it is not at all difficult to understand the feeling of the two families.
In the future, as Ms Penrose's case comes to be considered by the courts, Ms Telfer will have further opportunities to comment on leave and other matters as they fall for consideration. I follow that many of those matters are of little consolation and I can only record the matter that I made comment about when we last adjourned this case and it is, in cases such as these, there are no winners.
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