R v Sebalj
[2004] VSC 212
•11 June 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1513 of 2002
| THE QUEEN |
| v |
| THOMAS JOHN SEBALJ |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 – 27 June 2003, 30 June 2003, 1 – 3 July 2003 | |
DATE OF SENTENCE: | 11 June 2004 | |
CASE MAY BE CITED AS: | R v Sebalj | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 212 | |
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CRIMINAL LAW – sentence – murder – not guilty plea – stabbing of partner – offender affected by psychosis after ceasing drug use – subsequent development of symptoms of schizophrenia – mitigating effects of mental illness - imprisonment for 15 years – non-parole period of 12 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Ryan Mr B. Kayser | Solicitor for Public Prosecutions |
| For the Accused | Mr G. Lyon | Victoria Legal Aid |
HER HONOUR:
Thomas John Sebalj you have been found guilty by a jury of the murder of Claire McKenna on 20 December 2001.
You are being sentenced at this late stage because you developed symptoms of schizophrenia, after the plea was made on your behalf and before sentence. The Court was first told of these symptoms on the morning upon which sentence was to be handed down. A further and updated report was then sought from Dr Douglas Bell, the forensic psychiatrist and Assistant Clinical Director of the Thomas Embling Hospital. In no way as a result of any fault on the part of Dr Bell, his report, dated 17 March 2004, was not available for circulation until recently. I have now heard further submissions which I will take into account in sentencing you.
The circumstances of the offence
In the evening of 20 December 2001 you stabbed Ms McKenna, your girlfriend of some four years, with a butcher's boning knife, twice in the chest, penetrating her heart and causing her death.
I accept that you were at the time affected by a paranoid psychosis which in Dr Bell’s opinion resulted from the direct influence of psychotogenic drugs upon you, a person vulnerable to the development of such a condition. Dr Bell has not expressed the view that you were suffering from schizophrenia at the time of the murder, although he considers that you have now developed the illness.
The jury's verdict indicates its finding that you had the intention of killing or of inflicting really serious physical injury upon your victim.
You have been unable to provide any account of the events immediately surrounding the stabbing at the bungalow you shared with Ms McKenna at the rear of a residential property in the Melbourne suburb of Bayswater. Dr Bell’s evidence however was that such a loss of memory was not uncommon in such circumstances.
It is relevant to consider the events of 20 December 2001 against the background of your history and personal circumstances.
Background
You are 31 years old and were born on 28 August 1972. You are one of three children of parents who left Germany in 1961. Your elder sister, Andrea, has remained there. You are very close to your brother, James, the manager of a Victorian golf club. You come from a loving and supportive family and were brought up in accordance with the Christian beliefs which you told the Court you still held. You attended three different high schools in the Ferntree Gully area, leaving after completing year nine.
You then started a very successful career as a butcher and, at 18, were runner-up for the "Apprentice of the Year” award. You quickly took managerial roles in shops in Shepparton and Melbourne. Your former employers, Mr Ronald Malcholm and Mr Mark Nathan, testified to your trustworthiness, diligence and competence.
Seeking change, you began work as a storeman at Siemens Communications in 1997. Your industriousness continued and you obtained a fork-lift driver’s licence, completed a computer course and studied first aid and workplace safety. At Siemens you were involved in large projects requiring much overtime work, supervising the unloading and unpacking of mobile phone electronic equipment throughout the country. A family friend and co-worker, Ms Regina Raulin, described you as always "peaceable, friendly and helpful." Your brother James' wife, Dagmar, your supervisor at Siemens for four years, said that that you were an excellent worker. You greatly enjoyed your work but, unfortunately, were retrenched in February 2001. You returned to work as a butcher in about October or November of that year, but gave up work for reasons related to your use of drugs.
You have a long history of drug abuse. You started sniffing amphetamines at 18. Between 23 and 25 you were smoking cannabis continuously and injecting amphetamines. From 25 and 29 you were using heroin daily. You stopped using amphetamines then and did not experience any symptoms of psychosis. You continued to smoke cannabis daily. Two years of heroin use led to an unsuccessful Naltrexone detoxification program and, apparently, a methadone program in 1999. After resuming work as a butcher late in 2001 you started using amphetamines again to keep up with the young butchers and to counteract the sedating effects of methadone.
You had decided some weeks before December 2001 to try to regain control of what you saw as your directionless life, by giving up amphetamines. You stopped work, to deprive yourself of the income required to purchase drugs. You began to experience symptoms of paranoid psychosis in the form of visual and aural hallucinations escalating in severity for some weeks before 20 December 2001. You felt that you were under surveillance from persons and robotic objects and that others were intending to kill you. You imagined hearing possums or intruders or the neighbours talking outside at night. You had also been shouting at the neighbours at night and Ms McKenna had had to settle you.
On 13 December 2001 you told your parents of fears that your food and drink were being tampered with by your workmates. You reported your concerns to your treating general practitioner on 15 December and asked for drug tests. These showed a negative response in relation to amphetamines. You consulted your doctor again on both 17 and 18 December when suffering from symptoms of anxiety. Your parents watched you deteriorate into a frightened anxious state between 6 and 19 December. Dr Bell concluded that your escalating paranoid psychotic symptoms were the result of your amphetamine use and withdrawal from the drug.
You made real efforts to seek help at the Angliss hospital on 19 December the day before the murder. Unfortunately, because of your paranoid fear that those to whom you were speaking might intend to harm you, you did not fully disclose your symptoms.
Early on the morning of 20 December 2001, after a sleepless night on high alert, you went to the general practitioner's surgery to try to discover what was happening. Surprised to find the surgery and all shops shut, you wondered whether everyone had quickly closed up to make it look as though there was no one around. You went to the Boronia police station to ask what was happening, complaining of problems with your head. Police referred you to the Maroondah Hospital. You went there immediately and your psychotic state was diagnosed. You were treated with tranquillising and anti-psychotic medication and released into the care of Ms McKenna who was anxious to look after you. Arrangements were made for a member of the Crisis Assessment Team (“CAT team‘) to visit your home that evening.
When the male psychiatric nurse arrived at your home that evening and telephoned, identifying himself, you hung up without speaking. He redialled and spoke to Ms McKenna who reassured you that he had come to help. His knocks produced no response. He heard a male voice and explained who he was. Still there was no response. When he telephoned again, Ms McKenna invited him to come on up to the bungalow, saying that you were confusing him with someone else.
As the nurse approached, he heard banging and crashing noises and what he described as high pitched very loud yelling from both a male and a female. He heard a female voice say "Tom". He was concerned and went back to his car. When he called your number again, you answered and responded "it's too late" to his question as to what was happening. When he asked whether you had hurt yourself or Ms McKenna, you told him to leave. You had indeed badly injured yourself by cutting your left wrist, lacerating multiple tendons, nerves and arteries, as well as wounding yourself in the chest.
You subsequently came out covered in blood and presented yourself at the window of the house in the garden of which the bungalow is situated. You asked the occupant of the house to call an ambulance. Meanwhile the nurse had called for assistance from the CAT team and police. When he returned to the house you were running around in the front of the house with a towel on your arm and dripping blood. The occupant of the house was trying to get you to sit down. When the ambulance arrived you behaved inappropriately. You kept saying to those around you "she will be okay in a while" and "she'll be alright". Another psychiatric nurse who had arrived described your presentation as psychotic. Ms McKenna's dead body was found on the floor in the bathroom of the blood-stained bungalow.
Your chest and wrist wounds were treated surgically at Dandenong Hospital and from 22 to 31 December you remained in the security prison ward at St Vincent’s Hospital. No psychotic or major depressive illness was diagnosed. You were admitted to the St Vincent’s Correctional Health Unit at Port Phillip Prison on 31 December 2001 for ongoing psychiatric care in relation to your resolving psychosis. You suffered depression and anxiety and engaged in what might be described as suicidal behaviour. You were treated with the anti-depressant Fluvoxamine.
The effect of the psychosis
Before your trial[1] Smith J ruled that the defence of mental impairment under s 20 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 was unavailable in the absence of a disease of the mind. At trial you did not rely upon such a defence.
[1]R v Sebalj [2003] VSC 181
Dr Bell interviewed you on 2 April 2003, after having read the various medical and other materials. He said that your demeanour and purposeful behaviour at around the time of the stabbing were consistent with you knowing the nature and quality of your acts. However he thought it more problematic as to whether you were so psychotic as not to appreciate the wrongfulness of your actions. He was uncertain whether you had injured yourself deliberately or your injuries had occurred during a struggle with Ms McKenna. He thought it reasonable to conclude that you feared that you were facing imminent death and, on the balance of probabilities, that you were sufficiently psychotic as to be unable to appreciate the wrongfulness of your acts as perceived by reasonable people with a moderate degree of sense and composure.
Dr Bell reviewed you on 11 March 2004 at Port Phillip Prison in St Paul’s Unit for prisoners with mental health problems. You and staff said that you had remained mentally well from April 2003 until your trial in August that year. However you told Dr Bell that you had begun to experience a recurrence of paranoid symptoms of considerable intensity that had persisted in varying degrees up to the date of the report. You were assessed and commenced treatment by anti-depressant and anti-psychotic medication which continues. Dr Bell said that you described “a range of persecutory and distressing experiences consistent with delusions, hallucinations and somatic passivity symptoms.” You told him about experiencing a buzzing sensation in your right knee which “beeped” when prison officers used metal detectors near it. You indicated your belief that officers had been trying to control or bug you and that a steel object in your knee had been interfering with your thoughts. You said that you felt that you were constantly watched and monitored, that you might be targeted as an evil person and that you could not trust prison officers or the clinical staff.
Dr Bell said that it was difficult to know precisely how extensive or intense your symptoms had been throughout the period since the trial and he reported some divergence of opinion amongst staff at St Paul’s Unit at the prison as to the genuineness of your symptoms. However, he noted your treatment with what he said must be regarded as a “reasonably high” dose of anti-psychotic medication. He concluded that there was nothing in your presentation to support the conclusion that you were knowingly and purposefully fabricating psychotic symptoms for the purpose of the interview. He said that you presented as a distressed and demoralised man asking for help. He concluded that, unless your psychotic symptoms were to be disbelieved, you were, in March 2004, suffering from a schizophrenic illness that required ongoing treatment.
Dr Bell inclined towards the view that your underlying vulnerability to psychosis had resulted in its development in the setting of your use of both the known pychotogens, cannabis and amphetamines, over the previous three months. The subsequent stress of your trial had once again triggered that psychosis. He said that, nevertheless, many psychiatrists would say that you had a schizophrenic illness from the outset.
In his report of 17 March 2004 Dr Bell recommended a hospital security order under s 93(1)(e) of the Sentencing Act 1991 as appropriate for you. However, he subsequently told the Court that the shortage of beds at the Thomas Embling Hospital and competing demands meant that he was unable to offer the option of such an order and did not foresee ever being in a position to do so. This is a most regrettable situation, in my opinion. However Dr Bell did say that, if at any time you could not be dealt with at St Paul’s Unit, it would be possible for you to be transferred to the Acute Admissions Unit at the Melbourne Assessment Prison and, if necessary, to the Thomas Embling Hospital .
Both counsel appearing on your behalf and counsel for the prosecution appearing on the further plea submitted that your psychotic condition meant that you were an unsuitable vehicle for general deterrence and they referred to a number of authorities supporting that proposition[2]. Counsel for the prosecution submitted that R vYaldiz[3] was the most apposite case. It was submitted on your behalf that you were less morally culpable than someone who had committed the same crime whilst simply under the influence of drugs.
[2]R v Anderson [1981] VR 155; R v Della [1999] VSC 540; R v Tsiaras [1996] 1 VR 398; R v Yaldiz [1998] 2 VR 376; R v Kasulaitis [1998] 4 VR 224.
[3][1998] 2 VR 376
I must take into account the severity of the symptoms of your illness and its effects upon your mental capacity. In R v Tsiaras [4] it was held that you might be regarded as less morally culpable because you suffer from schizophrenia although your legal responsibility has not been diminished. What is just in the way of punishment is affected and denunciation is less likely to be a sentencing objective. Even though your specific mental illness may have developed after the offence the requirements of general and specific deterrence are both modified.
[4][1996] 1 VR 398
Your mental illness may also be taken into account in mitigation of sentence in another way. Because I accept the evidence of Dr Bell that you have reported that you experience paranoia and labour under the delusions previously described about the prison officers and clinical staff, I consider that imprisonment may weigh more heavily upon you than upon someone who was in good mental health.[5]
[5]R v Boyes [2004] VSCA 97 [17]-[23] per Chernov JA [43]- [46] per Coldrey AJA
You killed the woman you loved in circumstances where there was no evidence of any previous conflict between you or motive for your crime. You were affected by severe paranoid delusions about the reality of your circumstances. These symptoms had escalated, not in the context of your continuing amphetamine use, but rather during the period after you had taken steps to rid yourself of the effect of the drugs. You had sought appropriate help before the offence. You have instructed your counsel that you have remained drug free whilst in custody and have completed Uniting Church drug education courses.
Remorse
You have consistently expressed your remorse for your actions and grief as a result of the death of Ms McKenna and gave evidence in that regard at the trial. You have continued to feel shame and guilt. I do not regard your plea of not guilty as inconsistent with your remorse since you contested only the presence of the relevant intent for the crime of murder.
Rehabilitation
As far as your prospects for rehabilitation are concerned I have taken into account the evidence of your studies whilst imprisoned. You have continued your education and have completed TAFE courses in hospitality, horticulture, general education in reading and writing and occupational health and safety. You have also completed a course in anger management.
Your remorse and your efforts to withdraw from drug addiction as well as your general background including your strong work history indicate that your prospects of rehabilitation are good, provided any continuing mental illness continues to be treated.
Prior criminal history
You have no relevant prior convictions for violence. You have one prior conviction for theft and were also convicted of one count of indecent exposure.
Victim impact statement
In sentencing you I must take into account those factors in your favour, whilst giving due consideration to the seriousness of your crime. You have violently taken the life of a young woman, Ms McKenna. Her mother, Mrs Carol McKenna has filed a moving victim impact statement, describing the profound impact of her daughter's death upon her mental and physical health. I have taken into account the effect of your crime on her emotional and physical wellbeing. She suffers constantly as a result of images related to Ms McKenna's violent fate at your hands. Her happy memories of her daughter have been destroyed by your actions and she thinks only of the horrors she endured.
Mr Lyon submitted that the Court ought to take into account that there had been some breakdown in the relationship between Ms McKenna and her mother before her death. However, in my view, a parent who has been estranged from a child in such circumstances may well suffer added torment as a result of any lack of contact before that child's death. I am not persuaded that I ought to place any less emphasis on Mrs McKenna's victim impact statement than would be appropriate if they had maintained a close relationship up to the time of the murder. Indeed in this regard I note that she felt unable to attend the trial because of the traumatic effects upon her of her daughter’s death.
Sentence
Bearing in mind all the sentencing considerations I have mentioned, I have concluded that you should be sentenced to imprisonment for a period of 15 years. In light of your prospects of rehabilitation and the mitigatory and other factors discussed, I consider it appropriate to fix a non-parole period of 12 years in your case under s 11(1) of the Sentencing Act 1991. I declare under s 18 of the Sentencing Act 1991 that the period during which you have been held in custody of 904 days is to be reckoned as already served under this sentence. I direct that it be noted in the records of the Court that this determination has been made and its details.
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