R v PRENTICE - [2007] SASC 220

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PRENTICE
Criminal Trial by Judge Alone
[2007] SASC 220
Judgment of The Honourable Justice Sulan
19 June 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused charged with murder and other offences against the person - objective elements of offences charged proved beyond reasonable doubt - whether, at the time of the offences, on the balance of probabilities, accused mentally competent to commit the offences - accused suffering from mental impairment - accused did not know his conduct was wrong - accused was unable to control his conduct - accused mentally incompetent to commit the offences charged.
Accused found not guilty of each offence charged - accused declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 (SA) s 269A, s 269C, s 269G, s 269Q, s 269R, referred to.

R v PRENTICE
[2007] SASC 220
Criminal

SULAN J: The accused is charged with the murder of Tomacz Gromczak (“the deceased”) at Parafield Gardens on 4 August 2005. He is also charged with assault occasioning actual bodily harm, particulars of which are that, on 4 August 2005 at Parafield Gardens, he assaulted Lauren Patricia Uhl thereby occasioning her actual bodily harm. He is further charged with wounding with intent to do grievous bodily harm. Particulars of that offence are that, on 4 August 2005 at Parafield Gardens, he unlawfully and maliciously wounded Lauren Patricia Uhl with intent to do her grievous bodily harm.
On 12 June 2007, I found the accused not guilty of each of the offences on the ground of mental incompetence. I declared that he was mentally incompetent to commit the offences and I declared that he was to be liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (“the Act”). I now provide my reasons.
The objective elements
With the agreement of counsel for the prosecution and the defence, I determined to proceed first with the trial of the objective elements of the offences pursuant to s 269G of the Act.
The prosecution case was that the accused, together with the deceased, attended at the home of Reinhold Reeh at 13 Japonica Crescent, Parafield Gardens at about 2 pm. Mr Reeh was living at the house with the accused’s mother, Lauren Patricia Uhl.
Ms Uhl gave evidence that when she and Mr Reeh arrived at the house that afternoon she saw the accused and Mr Gromczak walking across a nearby paddock. The two young men arrived at the house and were invited inside. They were acting strangely and she asked them on a number of occasions whether anything was wrong. The accused and the deceased went into the lounge room and were seated on a couch. Ms Uhl was seated next to the accused.
Suddenly the accused began to scream, “Now Tomacz, now!”. The accused punched Ms Uhl in the face. He produced a screwdriver and attempted to stab her in the left upper chest. Ms Uhl resisted. Tomacz grabbed the screwdriver and tried to stab her. Mr Reeh intervened. The accused grabbed a pair of scissors from a table in the lounge room and stabbed Ms Uhl in the mouth. During the course of the struggle, Mr Reeh managed to push the accused and the deceased out the front door. He then locked the screen door. Mr Gromczak and the accused were attempting to break the screen door. Mr Reeh then shut and locked the front door.
Ms Uhl went into the bathroom. She could hear banging from the front of the house. It was the sound of a chair being banged up and down. She then looked out the kitchen door and saw the accused grab a garden hoe from near the back door. She then heard further sounds.
She ran out of the house to hear the accused crying out, “Mum, mum, what have I done?”. She met Mr Reeh at the front of the house and they observed the accused slumped on the ground near the fence. The accused was saying, “What have I done?” He had blood over his pants. The police arrived not long after.
The charge of assault occasioning actual bodily harm arises from the accused attempting to stab Ms Uhl with a screwdriver. The charge of wounding with intent to do grievous bodily harm arises from the accused stabbing Ms Uhl in the mouth with the scissors.
Mr Reeh gave evidence that Ms Uhl was staying at his home. He has known the accused since 1996. The accused had lived with him at 13 Japonica Crescent, Parafield Gardens for a number of months prior to the incident occurring. He was not living at Mr Reeh’s home at the time of the incident. He said that in the afternoon of 4 August 2005 he arrived home with Ms Uhl. He saw the accused and Mr Gromczak walking towards the house. The two boys came inside. Mr Reeh observed that they seemed “very down”. They then started talking about God. He heard Ms Uhl say to the accused, “You are not God”. Ms Uhl and the two men went into the lounge room. Mr Reeh remained in the kitchen. He said that he could hear conversation and both Mr Gromczak and the accused seemed argumentative.
He then heard Ms Uhl screaming. He ran to the lounge room and saw the accused lying across Ms Uhl with her head in a headlock. He was holding a screwdriver and thrusting the pointy end of the screwdriver towards Ms Uhl’s chest. She was trying to fend him off. Mr Gromczak was standing in the lounge room laughing. Mr Reeh grabbed the accused. Mr Gromczak grabbed Mr Reeh around the neck and started to punch him. The accused yelled out to Mr Gromczak, “Get a knife and stab the cunt”. He then heard Ms Uhl scream, “He’s got scissors; he’s trying to stab me with the scissors”. He saw the accused with a pair of scissors. He was trying to stab Ms Uhl in the left side of her body between her shoulder and hip. Mr Reeh was able to take the screwdriver and the scissors from the two men. He pushed them into the front yard. He followed the boys outside. The accused picked up the chair and swung it at Mr Reeh. Somehow, Mr Reeh managed to get back into the house. The two boys were trying to tear down the screen door.
During this time, Mr Reeh’s dog was in the front yard of his house. Mr Reeh saw the accused trying to strangle the dog. He then went out through the back door, climbed over the back fence and ran down Japonica Crescent to a neighbour’s house where he was able to telephone police. Mr Reeh returned to his home. About ten minutes had passed. He saw the deceased lying on the ground near the front porch on his back with his head resting on the concrete path. There was a large pool of blood on the concrete. He appeared dead. The accused was kneeling on the ground to the left side of Mr Gromczak. He had blood on the front of his jumper and was holding Mr Gromczak’s head, saying, “What have I done? Why, why, why?”. Mr Reeh then went back to the house from which he had made the phone call and again telephoned the police. Mr Reeh returned. He observed the accused who had blood down the front of his pants, on his shirt and his hands. The accused took off his jacket and sat down against the fence. Not long after, the police arrived. The accused was arrested.
Jacqueline Wendy Phillips lives at 10 Japonica Crescent, Parafield Gardens. At about 3.30 pm on 4 August 2005, she came home after picking up her children from school. Her home is on the opposite side of the street from the house in which Mr Reeh resides. As she was entering her house, she observed one of her daughters looking across the street. As they entered the house, her daughter told her that the boys were fighting. She looked out of her lounge window and could see two males on the front porch of number 13 Japonica Crescent. They appeared to be pushing each other. She saw both males sit down next to one another. Suddenly, the accused picked up a grey, metal car air-filter. He swung it from the right side of his body, in a baseball-style action, hitting Mr Gromczak. Mr Gromczak fell backwards. She saw the accused swing his arms and again strike Mr Gromczak in the head a number of times. Mr Gromczak was motionless. She could hear the sounds of the air-filter striking Mr Gromczak’s head. She then saw the accused lifting a chair over his head and hitting Mr Gromczak with it. At that stage, Mr Gromczak was not moving. She then saw Mr Reeh, who appeared for a moment and then walked away. She saw the accused cradling the deceased’s head. He appeared dead. She then saw the accused stomp on the deceased. She observed the accused thrusting a stick four or five times into the head of the deceased. The accused then disappeared. Shortly after, he returned with another instrument, which turned out to be a pickaxe, and she saw the accused appearing to spoon something about the head of the deceased. The accused walked away. She did not see him again until after the police arrived.
Michael James Olive, a friend of Ms Phillips, was present on 4 August 2005 in her house at 10 Japonica Crescent, Parafield Gardens. He saw the accused hitting the deceased over the head with the air-filter from the car. He observed the deceased fall to the ground. Shortly after, he saw the accused hitting the deceased with a chair. He telephoned the police. He then saw the accused with a cylindrical metal pole driving it vertically down into the chest area of the deceased. He saw the accused’s pants covered in blood. He saw the accused with an implement stabbing the deceased in the head area. He then saw the accused move away.
Other witnesses also observed parts of the incident. Detective Paul Joseph Ward attended at the scene at about 4.05 pm. He observed the body of Mr Gromczak lying on the western side boundary fence of the property. He saw the accused standing in the middle of the backyard crying loudly. His track pants were covered in blood. He approached the accused who was lying face down on the ground. A video recording was tendered showing the scene and the accused being arrested. The accused was in a highly distressed state and incomprehensible. He was taken to the police station where he was charged with the murder of Tomacz Gromczak.
The cause of death was the combined effect of penetrating neck wounds and blunt force head injury.
Mr Vadasz, who represented the accused, made no submissions in respect of the objective elements.
I am satisfied beyond reasonable doubt that the accused inflicted the injuries upon Tomacz Gromczak which caused his death. I am satisfied beyond reasonable doubt that the accused assaulted Ms Uhl thereby causing her actual bodily harm and I am satisfied beyond reasonable doubt that the accused attacked Ms Uhl with scissors and inflicted a wound to her face.
I am therefore satisfied beyond reasonable doubt of the objective elements in respect of each of the offences charged.
Mental competence to commit the offence
In accordance with s 269GB(1)(a) of the Act, I embarked on a hearing on the question of the accused’s mental competence to commit the offences. Pursuant to s 269GB(3) of the Act, I am required to decide whether it has been established, on the balance of probabilities, that the accused was, at the time the offences occurred, mentally incompetent to commit the offences.
Section 269C of the Act provides as follows:
269C—Mental competence
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a)does not know the nature and quality of the conduct; or
(b)does not know that the conduct is wrong; or
(c)is unable to control the conduct.
Mental impairment is defined in s 269A(1) as follows:
mental impairment includes—
(a)a mental illness; or
(b)an intellectual disability; or
(c)a disability or impairment of the mind resulting from senility,
but does not include intoxication;
The accused was examined by Dr Craig Raeside, Dr Chris Branson, Dr Nambiar and Drs Schirripa and Czechowicz.
Dr Raeside is a Forensic Psychiatrist with many years experience. He has been working in the field of forensic psychiatry since 1991 and has previously been employed by the South Australian Forensic Mental Health Service based at James Nash House. He has provided psychiatric evidence on numerous occasions and prepared many reports for the assistance of the courts.
Dr Raeside examined the accused on 9 August 2005, some five days after the events leading to the accused’s arrest. He had available to him the clinical notes from James Nash House and the prison medical file, as well as the police apprehension report. He recommended an in-patient admission to James Nash House and the accused was admitted to James Nash House from 15 September 2005 to 19 January 2006. Dr Raeside again examined the accused on 29 March 2006. At that time, he had available to him Lyell McEwin Hospital medical records and Royal Adelaide Hospital Glenside Campus notes in respect of the accused. He also examined the video recording of the arrest of the accused. He considered that the accused was suffering from a psychiatric disorder, namely schizophrenia, and that, as a consequence of his schizophrenia, the accused may have been demonstrating active psychotic symptoms prior to and at the time he committed the acts of violence upon Ms Uhl and the deceased. He concluded that the accused was suffering a mental illness, either schizophrenia and/or a drug‑induced psychotic state, not simply intoxication at the time of the alleged offences. Dr Raeside continued to provide psychiatric treatment to the accused. On 13 March 2007, Dr Raeside reported that the accused had suffered a mental illness at the time of the offence, being schizophrenia. Dr Raeside concluded that at the time of the offences the accused was in a paranoid psychotic state and it was unlikely that drugs alone were responsible for the psychosis at that time. He concluded that the accused knew the nature and quality of his acts. However, he was satisfied on the balance of probabilities that the accused was not able to reason with a degree of sense and composure about the wrongfulness of his actions. Dr Raeside supported a mental incompetence defence on the grounds that, at the time of the offences, the accused was suffering from a mental impairment (an acute episode of paranoid schizophrenia) such that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions and further, that the accused’s ability to control his conduct would have been significantly impaired (although he had some control).
Dr Branson concluded that the accused was suffering from an acute psychotic episode which had existed for some weeks at the time of the offences. The accused believed that his mother was a ‘false prophet’ and that she ‘had to die’ in order for the ‘end of the world’ to come about. Dr Branson was of the opinion that Tomacz Gromczak was experiencing similar psychotic symptoms and that the accused’s killing of Mr Gromczak was senseless and not motivated by any logical reason. He concluded that some psychotic thinking must have been relevant to the reason for the commission of this otherwise inexplicable attack. Dr Branson’s opinion was that the accused was suffering from a mental impairment, being acute paranoid schizophrenia and that the accused would not have been able to reason with a moderate degree of sense and composure about the wrongfulness of his conduct. He also considered that on the balance of probabilities the accused would have been unable to control his conduct at the time. He therefore supported a plea of mental incompetence.
Doctor Schirripa is a Psychiatric Registrar at James Nash House. Dr Czechowicz is the Consultant Psychiatrist at James Nash House. They provide in-patient and out-patient psychiatric treatment of prisoners.
Dr Schirripa examined the accused. He and Dr Czechowicz considered the witness statements and reviewed hospital notes relating to the accused whilst he was at James Nash House. They concluded that the accused was suffering from a mental illness, namely a psychotic episode which was characterised by bizarre delusions, disorganised thinking and behaviour and significant levels of distress. The primary psychotic illness, namely schizophrenia, was the cause of the episode. The use of illicit substances was a precipitant to the onset of the illness. They concluded that the accused did not know that the conduct was wrong, as his delusions significantly impaired his ability to differentiate between right and wrong. They also concluded that he was unable to control his behaviour in respect of his attack on Tomacz Gromczak. They concluded that the accused has a mental impairment defence available to him.
Dr Nambiar is the Consultant Forensic Psychiatrist at James Nash House. He provided two reports. He had made available to him all the relevant witness statements and prison medical notes, including the notes of Dr Raeside. He examined the accused on a number of occasions. He noted that the accused had a family history of schizophrenia. He observed that the accused had exhibited symptoms characteristic of schizophrenia. He opined that that illness may have been evolving in the months leading up to the offence and noted that its symptoms were certainly apparent at the time the accused was incarcerated following his arrest. Dr Nambiar reviewed the reports of Drs Schirripa, Czechowicz, Branson and Raeside. He concluded that the accused was suffering from bizarre delusional thinking at the time of the offences and that he therefore had a mental impairment defence available to him. He concluded that on the balance of probabilities the accused’s ability to reason and think things through was impaired at the time of the offences and that the delusions from which he was suffering would have compelled him to act in the way he did. Dr Nambiar’s opinion was that the accused was suffering from schizophrenia. He supported a mental impairment defence.
Mr Brebner QC, counsel for the Crown, did not dispute the opinions of the various psychiatrists. He did not contest the conclusion that, at the time the accused committed the acts the subject of the charges, he was suffering from a mental illness, namely schizophrenia, and at the time he was suffering from paranoid delusions and was therefore mentally impaired, as defined in s 269A(1) of the Act.
I am satisfied on the balance of probabilities that at the time of the offences the accused was suffering from a mental impairment, being the mental illness of schizophrenia and paranoid psychosis. I am also satisfied on the balance of probabilities that at the time the accused attacked Ms Uhl with a screwdriver and subsequently stabbed her with scissors and shortly thereafter assaulted Tomacz Gromczak thereby causing his death, he did not know that his conduct was wrong nor was he able to control that conduct due to his mental impairment.
Pursuant to s 269GB(3) of the Act, I declare that the accused was mentally incompetent to commit the offences of murder (Count 1), assault occasioning actual bodily harm (Count 2) and wounding with intent to do grievous bodily harm (Count 3). I find him not guilty of each of the offences. I declare that he be liable to supervision under Part 8A of the Act.
On 12 June 2007, I remanded the accused in custody for a report to be provided to the Court by the Minister pursuant to s 269Q of the Act. I also note that, pursuant to s 269R, the Crown will provide to the Court a next of kin report.