R v Santianes (Ruling No. 1)
[2015] VSC 231
•11 May 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0204
| THE QUEEN |
| v |
| SANTIANES |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 May 2015 |
DATE OF RULING: | 11 May 2015 |
CASE MAY BE CITED AS: | R v Santianes (Ruling No. 1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 231 |
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CRIMINAL LAW – Murder – Verdict entered of not guilty by reason of mental impairment – Accused did not know that his conduct was wrong – Accused incapable of reasoning with a moderate degree of sense and composure about whether his conduct could be perceived by reasonable people as wrong – s 20 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Peter Rose QC | Office of Public Prosecutions |
| For the Accused | James Fitzgerald | Victoria Legal Aid |
HIS HONOUR:
Legislative Scheme
Section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act provides that:
the defence of mental impairment is established for an accused person if at the time of engaging in the conduct constituted by the offence the accused was suffering from a mental impairment that had one or more of the following effects: - (a) he did not know the nature and quality of the conduct or; (b) he did not know that the conduct was wrong, that is, he could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.
An accused who establishes the defence of mental impairment must be found not guilty because of mental impairment. Part III of the Act establishes a procedure for jury determination of the existence of the defence. Where, however, the prosecution and defence agree that the evidence establishes the defence of mental impairment, a judge may hear the relevant evidence and, if satisfied that the evidence establishes that defence, may direct that a verdict of not guilty because of mental impairment be recorded. If not so satisfied the judge must direct that the accused person be tried by a jury (s 21(4) of the Act)).
This proceeding
In this case the accused man is charged with the murder of Peter Nielsen on 13 August 2014 at Mr Nielsen's Warragul unit. The prosecution and defence agree that the evidence establishes the defence of mental impairment. I am requested to undertake the s 21(4) procedure that I reviewed a moment ago.
Factual circumstances
The circumstances that surround Mr Nielsen's death are tragic and I will summarise them briefly. These circumstances were evidenced by the informant Detective Senior Constable Saul who adopted the Crown opening.
At about 6:45am on 13 August 2014 Peter Nielsen was asleep in the bedroom of his unit. His 16-year-old son Darcey was present in the adjoining bedroom. Around that time, the accused Benedicto Bantilan Santianes, who resided in the same set of units, entered Mr Nielsen’s unit via an unlocked a back door armed with a large kitchen knife. Mr Santianes entered the Mr Nielsen’s bedroom and stabbed him repeatedly in the head and neck region causing fatal injuries. The accused then returned to his unit, showered and washed the handle of the knife. Shortly after the stabbing Darcey located the deceased and called 000. By the time the police and ambulance paramedics arrived Mr Nielsen had already died.
Police carried out a doorknock in the vicinity of the crime scene and spoke to the accused. He confessed to killing the deceased man and was arrested. A post-mortem examination determined the cause of death to be multiple stab wounds.
The accused was born on 1 June 1988 in Manilla and migrated to Australia with his mother in 2003. He became an Australian citizen in 2009. He enlisted in the Australian Army on 12 June 2007 and completed his training at Wagga Wagga. He then underwent artillery training at Puckapunyal before being posted to Darwin and then re-posted to Puckapunyal. He went absent without leave on 26 July 2010 and was discharged on 11 September 2010.
After his discharge from the army, the accused resided in Queensland for several months before returning to Warragul, where he worked on a casual basis with his stepfather. The accused moved into Unit 4 of the relevant units on 9 February 2013; that is, 18 months prior to this incident.
Mr Nielsen regularly cooked dinner for the accused, and the accused trained Darcey in boxing and kick boxing. The accused also played basketball and soccer with Darcey, socialised with Darcey and the deceased, and was a frequent and welcome visitor in the deceased’s family home.
The accused, it appears from the evidence, was fascinated with martial arts and on 29 March 2014 he posted a video on his Facebook page showing a demonstration of how to defend and attack with a knife. Two months before the deceased’s death the accused had shown his then housemate, Jack Cooper, how to defend and attack someone with a knife. The accused would often speak about his time in the army, and on several occasions he was observed and heard by numerous people talking to himself. In the weeks leading up to the deceased's death the accused stopped going to the deceased's unit. There was no apparent reason for this.
On the night before Peter Nielsen’s death the accused attended at Mr Nielsen's address and watched TV until approximately 8.00pm. There was no indication of anything untoward during the visit, and accused was laughing and appeared happy while he was there.
On 15 August, that is two days after the relevant events, the accused was conveyed to the St Kilda Road police complex for interview. He was examined by a forensic medical officer who determined that he was fit for interview. The accused gave a bizarre account of himself. He said that he had to kill Mr Nielsen to stop Mr Nielsen from killing others.
At Question 116 Mr Santianes was asked why he went to Mr Nielsen's unit. His reply was in these terms:
To pretty much eliminate him. Prevent causing death from other people, from not just his own family itself, I'm talking his own target, his intending too was his own Ma, his Pa, and whoever get involved with either his son or other relatives that's involved. I believe that he is also intended as well as pinning me down on rape charges where he could have raped someone using my own identity or DNA, whatever. But the end of the day I know I've always been true to myself and true to the people who is needing help, and otherwise I wouldn't have done this.
With the considerable advantage of hindsight, there appear to have been several warning signs that the accused was becoming mentally ill as 2014 progressed. Jack Cooper, a former flatmate, observed the accused talking to himself, talking to the television and referring to himself in the third person. Lawrence Hudson, a friend, made similar observations, as well as noting the accused talking very loudly and quickly and displaying strange actions. Glen Boxhall told police that the accused had said to him, “I've got to tell ya, he has been to New South Wales and killed a male and a female, raped them, went to Tasmania, killed and raped a male and a female, Queensland, as well as, then South Australia”.
Upon his examination by senior forensic officer Associate Professor Morris Odell, Professor Odell noted that the accused presented with delusional aspects to his conversation and that a psychiatric assessment was indicated. This was a few days after the incident had occurred.
Psychiatric Evidence
1. Dr Ong
Dr Ong, an experienced forensic psychiatrist, examined the accused for his solicitor on 19 November 2014; that is it about three months after Mr Nielsen's death. Insofar as the accused's mental state at examination was concerned, Dr Ong noted that the accused’s thought stream was mildly decreased. He expressed a well-systematised delusional belief in regards to being a special operative with the Australian Army who, amongst other missions, had been tasked to ‘eliminate’ his alleged victim in order to prevent harm to others.
Mr Santianes voiced to Dr Ong what appeared to be auditory hallucinations and ideas of reference that were interrupting or talking over the TV and discussing military actions ‘strategy and topography’. He attributed these voices to that of his ‘military colleagues’.
A little further on Dr Ong noted this: “Mr Santianes was insightless in regards to the presence of a mental illness or its impact on offending. He was nevertheless passively compliant with prescribed antipsychotic medication.”
Mr Santianes provided to Dr Ong a personal and psychiatric history. I shall not set out those matters; they are relatively unremarkable. Mr Santianes denied any personal or family history of mental illness. Similarly, the drug and alcohol history provided by the accused is relatively unremarkable.
The accused described being a cannabis user, commencing approximately two years before this incident. This, however, does not seem to have had any influence upon his mental illness, nor is there any suggestion that his psychoses at the time of Mr Nielsen’s death were cannabis induced.
The accused gave Dr Ong an account of the current offence. I quote from Dr Ong's report: “Mr Santianes stated that the charge was ‘just a murder’. He stated that it was performed in self‑defence. ‘He (Mr Nielsen) was intent on killing me and two of my operatives.’ Mr Santianes stated that he had known Mr Nielsen since moving to Warragul and Mr Santianes described Mr Nielsen as a racist. He also stated that ‘Mr Nielsen had tried to get me involved with killing his mother and father, he spoke to me and offered me money'. When asked why he thought Mr Nielsen was a racist he stated that he would hear threats and racist slurs as well as laughing which he attributed to Mr Nielsen. He also stated that he could taste a change in the water supply which he attributed to Mr Nielsen trying to poison him. Mr Santianes also stated ‘He knew I was in the way, I needed to save innocent lives’. He, Mr Santianes, viewed body language signs and hence his attitude as evidence of Mr Nielsen being a threat”.
I continue to quote from Dr Ong’s report: “Mr Santianes also voiced what appeared to be delusions of reference from the TV telling him about international operations and he believed that Mr Nielsen would be interrupting these operations. He stated that the ‘threat was getting higher and higher’ and he also claimed that he saw his own name on Mr Nielsen’s desk during a visit and that ‘it had to be done, I had to engage him, he became a target, kill or be killed’. Mr Santianes stated he felt it was his duty to kill Mr Nielsen to ‘save his son and family, he was spreading disease by his saliva and food’. He stated ‘I had no choice, it was better to lose one than to lose many’. He also voiced the belief that Mr Nielsen had raped and killed his own sister. When I asked Mr Santianes why he had not approached the police with these concerns he stated that he had tried to attend the police station and had received or heard a message ‘he’s yours’. Upon reflection Mr Santianes stated that he had been receiving messages from ‘colleagues’ pertaining to “military actions” since at least the beginning of 2014, though he claimed to have received the Congressional Medal at the age of 19 for designing military weapons, nuclear weapons, which he said were ‘for the safety of whole world’.”
Dr Ong assessed the accused’s fitness to stand trial in these terms: “Mr Santianes was aware that he had been charged with the murder of Mr Peter Nielsen. He was aware of different plea options stating that guilty meant ‘I did it’ and not guilty meant ‘I didn’t do it’. He also stated that not guilty could also mean ‘it was the right thing to do’.”
Dr Ong noted: “Mr Santianes was able to acknowledge the roles of various officers of the court” and a little further on opines: “Mr Santianes was able to remain composed and follow the course of a relatively lengthy assessment process and it is likely that he will be able to follow the course of a trial.” Dr Ong was of the view that as at November 2014 the accused was fit to stand trial.
Dr Ong then offered his opinion and recommendations. I will not set them out in any detail.
In summary, he concluded that the accused was suffering from a psychotic illness, most likely schizophrenia, which was untreated at the time of the offence. The accused man elaborated a well systematised delusional belief in relation to being a secret operative of the Australian Army tasked with military operations. Unfortunately, says Dr Ong, the accused incorporated Mr Nielsen into his delusional system.
Dr Ong set out further particulars of the delusions and then stated this: "In light of the above it is my opinion that as per s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that Mr Santianes has a defence of mental impairment available to him. Mr Santianes was acutely psychotic at the time of the murder seeing as his mission the launch of a pre-emptive strike against Mr Nielsen to prevent harm to Mr Nielsen’s family as well as Santianes’ himself. Mr Santianes had developed a belief that it was kill or be killed at the time of the offence. It is my opinion (said Dr Ong) that it was the presence of Mr Santianes’ psychotic illness that made him unable to reason with a moderate degree of sense and composure in regard to the wrongfulness of his killing of Mr Nielsen”.
2. Dr Mashhood
Dr Mashhood is also an experienced consultant forensic psychiatrist at the Victorian Institute of Forensic Medicine (Forensicare). He was engaged by the Office of Public Prosecutions to offer opinions on (a) the accused's fitness to stand trial and (b) whether the accused has a defence of mental impairment. Like Dr Ong, he was provided with the brief of evidence. He was also provided with other material including Dr Ong's report. Dr Mashhood interviewed the accused for 90 minutes on 10 March 2015 at Port Phillip Prison. He took similar personal and psychiatric histories to Dr Ong. Dr Mashhood summarised the offending which is in the same terms as the Crown opening and which is undisputed on this trial. I shall not repeat it.
Dr Mashhood then took a version of events from Mr Santianes. I shall now refer to certain portions of that history, and then I shall refer to Dr Mashhood’s diagnosis and opinion.
At paragraph 8.6.1 of Dr Mashhood’s report he says this: “Mr Santianes said that he was aware that Mr Nielsen, who was also called Bush, wanted his own mother and father killed. Mr Santianes said that he had heard Mr Nielsen ten times in a two month period leading up to the alleged index offence offering him $30,000 to kill Mr Nielsen’s parents. He said that he knew Mr Nielsen was scheming to get a $1.2m estate. He said that he had consistently declined Mr Nielsen’s offer of $30,000 and in return Mr Nielsen had threatened him and his family. He said that he had also heard Mr Nielsen scheming to kill his own eldest son who was opposed to selling Mr Nielsen’s family estate. He said he used to hear Mr Nielsen’s plans in Mr Nielsen’s own voice in his, Mr Santianes’ unit through the walls and at times throughout the night”.
A little further on in Dr Mashhood’s report he says: “Mr Santianes said that Mr Nielsen had contacts with bikie gang members who were hired by Mr Nielsen to execute him (Mr Santianes). Mr Santianes said he had acted to kill Mr Nielsen to prevent harm to and deaths of Mr Nielsen’s family members, including Mr Nielsen’s mother and possibly Mr Nielsen’s sister and Mr Nielsen’s son. He said that killing Mr Nielsen had also prevented bikie gangs from spreading crime”. Mr Santianes said to Dr Mashhood, “Make sure you communicate this in your report because this was my biggest success.” Mr Santianes described believing that he had a special role within the Australian Army. He said that he had heard his Army instructors voices for some time prior to the alleged index offence leading him to believe that he was tasked to eliminate his alleged victims in order to prevent harm to others.
A little further on following passage appears: “Mr Santianes said that the night prior to the alleged index offence he went to Mr Nielsen's house after a gap of not visiting him for quite some time. He said that he had stopped visiting Mr Nielsen’s house due to the regular threats from him. He said that, however, that night he visited to see how Mr Nielsen’s son was doing, who was Mr Santianes’ kick boxing student. Mr Santianes said he stayed and watched television with Mr Nielsen. He said that he was offered a cone of cannabis by Mr Nielsen. He said that Mr Nielsen insisted they smoke it together. He said that he smoked it with Mr Nielsen, but knew that Mr Nielsen had decided to drug him to make him (Mr Santianes) do the dirty work for Mr Nielsen. He said that he did not smoke an excessive quantity so that he remained unaffected. He said that he left after about 15 minutes, and went on to say that as soon as he returned to his unit he vomited involuntarily. He said that he was constantly hearing Mr Nielsen's voice asking him to do his dirty work of killing Mr Nielsen’s family, pretending to be his friend, threatening him if he did not listen to Mr Nielsen that Mr Nielsen would have him killed or kill him, including hearing, ‘I’m going to kill you if you don’t do what I ask you to do’. He said that he could hear Mr Nielsen calling him racist names, and he heard it through his unit’s walls and recognised Mr Nielsen’s voice. Mr Santianes said that, ‘Then I decided to make a move’”.
Mr Santianes continued to display gross mental illness upon a mental state examination on 10 March 2015. Dr Mashhood continues at p 10 of his report to offer his opinion and recommendations, and I quote them very shortly: “Mr Santianes suffers from major mental illness. Mr Santianes’ mental illness is characterised by the presence of fixed, firm and false beliefs known as delusions as well as auditory hallucinations. Mr Santianes’ mental illness is characterised by a downward drift in his work and interpersonal relations. Mr Santianes’ most likely diagnosis is schizophrenia. Mr Santianes’ mental state examination demonstrated the presence of ongoing psychotic symptoms despite treatment with a recommended dosage of an antipsychotic medication”.
Insofar as fitness to stand trial was concerned, Dr Mashhood concluded that the accused man was fit to stand trial.
Insofar as the defence of mental impairment was concerned, I quote: “In my opinion Mr Santianes was acutely psychotic at the time of the alleged index offence of the murder of Mr Nielsen. In my opinion Mr Santianes, due to the experiences of his delusions, and auditory hallucinations at the time of the alleged index offence of murder believed falsely, yet firmly and unshakably, that he was on a mission to launch a pre-emptive strike against Mr Nielsen to prevent harm to Mr Nielsen’s family as well as to prevent harm to Mr Santianes himself. Mr Santianes also believed that through his actions he was preventing bikie gang criminal activities. Additionally Mr Santianes believed that he was on a mission that was given to him by the Australian Army to prevent the above-mentioned perceived crimes”.
A little further on, Dr Mashhood said this: “With respect to the alleged index offence of murder, therefore, it is my opinion that it was the presence of Mr Santianes’ psychotic illness that made him unable to reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong. Therefore, it is my opinion as per s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Mr Santianes has a defence of mental impairment available to him”.
Conclusions
I am satisfied that at the time that he stabbed Mr Nielsen to death the accused man did not know that his conduct what wrong. I am satisfied that he was incapable of reasoning with a moderate degree of sense and composure about whether his conduct, viewed objectively, was wrong. The prosecution and the defence agree that the evidence establishes the defence of mental impairment. Consultant psychiatrists engaged by each party have reached the same conclusion. The likely diagnosis is schizophrenia, and each respectively opines, that, at the time he carried out the fatal acts, the accused did not know that his conduct was wrong in the sense I have explained. Upon questioning by me both the psychiatrics expressed high levels of confidence in their opinions.
I am satisfied that the evidence establishes the defence of mental impairment. I direct that a verdict of not guilty because of mental impairment be recorded.
I make the following orders.
1.Pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 a verdict of not guilty of murder because of mental impairment be recorded in respect of the charge on Indictment E12708154.
2.There be a declaration pursuant to s 23(a) of the Act that the accused is liable to supervision under Part V of the Act.
3.Pursuant to s 24(1)(c) of the Act the accused be remanded in custody in a prison pending the making of a supervision order under s 26 of the Act.
4.The matter be adjourned pending the receipt by the court of a certificate of available services under s 47 of the Act and a report on the mental condition of the accused under s 41 of the Act.
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