R v Steinberg
[2010] VSC 612
•13 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0153 of 2010
| THE QUEEN |
| v |
| CHRISTINE STEINBERG |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2010 | |
DATE OF JUDGMENT: | 13 December 2010 | |
CASE MAY BE CITED AS: | R v Steinberg | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 612 | |
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CRIMINAL LAW – accused charged with attempted murder – prosecution and defence agreed that defence of mental impairment established – defence of mental impairment made out under s 20(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – accused liable for supervision under Part 5 of the Act – accused remanded in custody under s 19 of the Act pending decision on nominal term of supervision order –ss 19, 20, 21, 41, 47 and Part 5 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg | Office of Public Prosecutions |
| For the Accused | Mr D L Brustman SC | George Defteros Lawyers |
HIS HONOUR:
Christine Steinberg (“Mrs Steinberg”), has pleaded not guilty before me to the attempted murder of Noya Steinberg at Glen Waverley in Victoria on 29 April 2010 and the attempted murder of Erez Steinberg at Glen Waverley in Victoria on 29 April 2010.
The matter has proceeded before me as a hearing pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, which I will refer to as “the Act”. That provision allows me to determine whether a person charged with an indictable offence or offences was suffering from mental impairment at the time the alleged offence occurred without a jury where the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment. The prosecution and defence have so agreed which enlivens my jurisdiction to consider the matter.
Mental impairment is defined in s 20(1) of the Act in these terms:
Defence of mental impairment
The defence of mental impairment is established for a person charged with an offence if at the time of engaging in the 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 or the quality of the conduct; or
(b) he or she 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.
Sub-section (2) of that section provides:
If the defence of mental impairment is established the person must be found not guilty because of mental impairment.
Accordingly, if I am satisfied that the evidence establishes the defence of mental impairment I may direct that a verdict of not guilty because of mental impairment be recorded or if I am not so satisfied I must direct that the charge for the offence be tried by a jury.
CROWN OPENING
I take the facts from the Crown Opening. The defence took no issue with the opening.
The accused, Mrs Steinberg, was born on 7 June 1967. She was 42 years old at the time of the offences which took place on 29 April 2010.
At the time of the offences, Mrs Steinberg was married to Chen Steinberg (“Chen”) and had three children with him. The children’s names are Noya who was born on 12 May 2006, Erez who was born on 4 August 2008 and Leeraz who was 2 years old at the time. Noya and Erez are the complainants in this matter and were aged 3½ years and 7 months respectively at the time the offences occurred.
On 28 April 2010 (the night before the offences), Chen had asked Mrs Steinberg’s mother, Effie Miros (“Effie”), to come to their home in Tullius Avenue, Oakleigh East.[1] Mrs Steinberg had not been sleeping and looked unsettled. She had been diagnosed several days earlier as suffering from depression and was prescribed Tamazapan.
[1]Exhibit C3, Deposition, pp 73-74
Upon attending the home, Effie heard Mrs Steinberg and Chen arguing. Mrs Steinberg told Chen that she was not coping with the children and the house.[2] After things calmed down between them, Effie asked Chen to make sure that Mrs Steinberg took her medication, which he reports he did. Mrs Steinberg became drowsy and was taken to bed by her husband. She is reported by him to have slept through the night. Effie slept in the children’s room.
[2]Exhibit C3, Deposition, pp 48-49
Mid morning the next day, after Chen had gone to work, Mrs Steinberg, Effie and the three children went to Effie’s home in Delmore Crescent, Glen Waverley. For the rest of the morning and early afternoon, things were uneventful at Delmore Crescent.
After lunch, George Milos (“George”), Mrs Steinberg’s father, was in the front yard with his grandson Samuel. Effie and Mrs Steinberg’s sister Vicki Miros (“Vicki”) were out shopping and Mrs Steinberg was inside the house with the children, having told George that they were going for an afternoon sleep and did not want to be disturbed.[3] When Effie and Vicki returned from the shop, Effie saw George outside with Samuel. Samuel was upset and was crying. He told Effie that
“Auntie Chrissy wouldn’t let me in, because the girls were sleeping”.[4]
[3]Exhibit C3, Deposition, pp 67-68
[4]Exhibit C3, Deposition, pp 60-61
Effie took the shopping inside and read a magazine for a while. She then decided to look in on Christine and the children. She attempted to open the door but it was locked from the inside. She knocked but there was no answer. She knocked a second time and again there was no answer. So she pushed the door with her leg but it would not open. She kicked harder and the door then opened.
Effie saw Mrs Steinberg lying on the bed on top of two of the children. The area was covered in blood. The little girl, Noya, was breathing very deeply and was crying. The little boy, Erez, was pale. Effie pushed Mrs Steinberg off the children and onto the floor. She then grabbed Erez. She recalls that he was cold and that there was a lot of blood on his little hands and clothes, he was still breathing. Leeraz was in the room but unharmed. She called out to Vicki to call an ambulance, asking that they come quick as she felt they were losing the children. Vicki grabbed Noya and called the ambulance. The Metropolitan Fire Brigade (“MFB”) were first on the scene.
Ambulance attendance on Mrs Steinberg
The ambulance containing Ambulance Paramedics Meagan Leembruggen[5] (“Leembruggen”) and John Berry[6] arrived at 3.05pm. They entered the home and saw the children being attended to by MFB officers. They assessed the children and found that both of them had sustained lacerations to the wrists, front of the neck and had lost blood. They were responsive but drowsy.
[5]Exhibit C3, Deposition, pp 76-77
[6]Exhibit C3, Deposition, pp 79-81
Shortly after their assessment of the children, they were made aware of a third patient, Mrs Steinberg. John Berry made a radio report to dispatch, whilst Leembruggen attended to Mrs Steinberg. Leembruggen saw that Mrs Steinberg was lying supine on the bedroom floor with deep lacerations to both wrists and a large amount of blood in the area. She was in an altered conscious state and verbally unresponsive. A MICA officer, Noel Bird (“Bird”) assisted Leembruggen bandage Mrs Steinberg, administered oxygen and intravenous fluids and prepared her for transport. During this time the level of Mrs Steinberg’s consciousness improved and she became responsive to demands.
Bird also observed Mrs Steinberg’s wrist wounds to be deep, multiple full thickness lacerations.[7] Once she was placed into the ambulance, Bird observed Mrs Steinberg raise her hands to her face and cried uncontrollably. Senior Constable Bryant (“Bryant”) rode in the back of the ambulance with Leembruggen.[8] Whilst in the ambulance he heard Mrs Steinberg say “where’s my babies?” and “I wanna die”. He had an opportunity to photograph her wounds. Bryant also attempted to obtain from Mrs Steinberg information as to whether and what pills she had given Noya and Erez, as pills had been found at the property, however, she was unable to answer him. There were four assorted white and yellow pills mixed in peanut butter.[9]
[7]Exhibit C3: Deposition, pp 83-85
[8]Exhibit C3: Deposition, pp 52-53
[9]Exhibit C3: Deposition, p 55 [5]
Leembruggen recalls asking Mrs Steinberg what happened. Mrs Steinberg answered “I don’t know, I don’t know what’s happening”. En route to the Royal Melbourne Hospital, Mrs Steinberg developed a life threatening haemorrhage to her right wrist and whilst pressure was being applied her conscious state dropped off. She stabilized and was handed over to hospital staff upon arrival.
MICA attendance on Noya
After having assisted Leembruggen with Mrs Steinberg, Bird’s attention turned towards Noya. He found her to be conscious, but drowsy, yet answering all questions appropriately, obeying all verbal commands. She had intravenous fluids being administered and her wrists and neck had been dressed. He did elect to inspect the lacerations prior to her departure for hospital and he observed subcutaneous lacerations to both wrists and neck.
MICA attendance on Erez
MICA paramedic Campbell Asker (“Asker”) attended the scene with Bird. Asker attended to the injuries sustained by the infant Erez.[10] He was lying on the floor of the lounge room conscious but drowsy and initially pale. He was wearing a jump suit which Asker cut off him, leaving him in a nappy. Asker is unsure of the amount of blood lost by Erez, but approximates it to be less than 100ml. Erez was initially drowsy, but began to cry when being moved around and having his wounds dressed. Oxygen was administered to him and he had a cardiac monitor attached to him.
[10]Exhibit C3, Deposition, pp 88-89
Report of Dr Nina Zimmerman – Forensicare (dated 26 October 2010)
Dr Zimmerman interviewed Mrs Steinberg on 8 October 2010 to prepare a report for this matter. Dr Zimmerman had also been Mrs Steinberg’s treating psychiatrist at Thomas Embling Hospital from Mrs Steinberg’s admission on 10 May 2010 until her discharge back to Dame Phyllis Frost Centre on 2 September 2010. Dr Zimmerman conducted numerous interviews with Mrs Steinberg. Dr Zimmerman reported as follows.
History obtained
Up until the birth of her son Erez, her husband had been supportive and respectful in the relationship, however, after a time he began to yell at her. His behaviour changed when he stopped using marijuana and became moody and erratic. In February/March 2010 he lost control and punched her in the head. She attended a police station but did not proceed with the charges. The marriage had deteriorated significantly by April 2010.[11]
[11]Exhibit C4, Report of Dr Nina Zimmerman, p 3 [6]
There is a family history of depression including Mrs Steinberg’s mother, Effie Miros, who has a history of depression,[12] and her sister, Vicky, who has a history of psychiatric illness in her early 30s. Central East Area Mental Health Service indicates Vicky had a history of psychosis and that both parents had histories of depression.[13]
[12]Exhibit C4, Report of Dr Nina Zimmerman, p 4 [1]
[13]Exhibit C4, Report of Dr Nina Zimmerman, p 4 [2]
Mrs Steinberg reported no significant medical history,[14] including no seizures and no loss of consciousness.[15] Mrs Steinberg presented at the Box Hill Hospital in 1987, having overdosed on her mother’s antidepressant medication after an argument with her father. Mrs Steinberg said she took tablets because she was tired but had no intention of overdosing. She received no follow up care. Mrs Steinberg, in interviews with Dr Zimmerman, minimized the importance of the reported overdose in her twenties.
[14]Exhibit C4, Report of Dr Nina Zimmerman, p 4 [5]
[15]Exhibit C4, Report of Dr Nina Zimmerman, p 4 [7]
The information from the Central East Area Mental Health Service Crisis Assessment and Treatment Team (CATT) indicated that in 2004 Effie had referred Mrs Steinberg to CATT because of concerns about bizarre behaviour and persecutory ideation focused on her sister. Effie had reported that Mrs Steinberg was not eating, losing weight, locking herself in her room, accusing her sister of taking her teeth out and seeing her dead grandmother sitting on her bed. Mrs Steinberg and her parents adamantly denied this occurred. The diagnosis at the time was “cultural generational conflict with parents”, although it was noted that there were possible depressive psychotic symptoms. A follow up was arranged but the appointment was cancelled and no follow up occurred.
Mrs Steinberg’s GP (Dr Angela Kent) reported that Mrs Steinberg had been diagnosed with depression at a Forest Hill Clinic in 1999 and commenced on the antidepressant Paraxetine, but did not appear to have taken her medication.[16]
[16]Exhibit C4, Report of Dr Nina Zimmerman, p 5 [5] and p 6 [1]
On 6 May 2003, Mrs Steinberg was seen by Dr Kent’s clinic for depression before her marriage. She was given the antidepressant Setraline, but did not attend for follow up. The CAT Team was involved but there was no further follow up after 20 May.[17]
[17]Exhibit C4, Report of Dr Nina Zimmerman, p 6 [1]
Mrs Steinberg was seen by a psychologist at Dr Kent’s clinic in April of 2008. She was experiencing mild levels of stress which resulted in headaches.[18]
[18]Exhibit C4, Report of Dr Nina Zimmerman, p 6 [2]
Just prior to the offending, Mrs Steinberg experienced significant mental distress over several months. This was mainly related to her marriage breakdown where she asked her husband to leave but he refused, and he slept in the hallway in a sleeping bag for some of the time.[19]
[19]Exhibit C4, Report of Dr Nina Zimmerman, p 6 [3]
She felt anxious about her safety and that of her children. She had trouble sleeping and worried about noises outside the house. She thought that a gang was after her and denied reports that she put extra locks on the doors of the home for extra security.[20] Her mother indicates that Mrs Steinberg also said that there were men in the roof of her house and that her husband had said that if she could not cope with the children, he would sell them for adoption.[21]
[20]Exhibit C4, Report of Dr Nina Zimmerman, p 6 [4]
[21]Exhibit C4, Report of Dr Nina Zimmerman, p 7 [1]
There are reports which Mrs Steinberg denies about believing that her face was altered and that plastic surgery had been performed on her children overnight. She admits to having concerns her children were sexually abused, which she attributes to her own level of distress.[22] Her sister, Vicki, reports that two weeks prior to the offences Mrs Steinberg spoke of a man being under her bed and having taken her daughter overnight and violated her.[23] She was prescribed sleeping tablets in the days prior to the offences.
[22]Exhibit C4, Report of Dr Nina Zimmerman, p 6 [5]
[23]Exhibit C4, Report of Dr Nina Zimmerman, p 7 [3]
Chen indicated that his wife had been unhappy with the marriage for its duration, slept little, was fearful of the world and felt she was out of control and that she believed strange things were going on around her.[24] The night before the offences, he believed she was taking sleeping tablets over a three day period and found her sedated and confused. The night before she asked him to take the children to Israel and make sure they were safe if anything happened to her.[25]
[24]Exhibit C4, Report of Dr Nina Zimmerman, p 8 [3]
[25]Exhibit C4, Report of Dr Nina Zimmerman, p 8 [3]
Conclusions of Dr Zimmerman
Dr Zimmerman concluded that there is a history of depression and possible psychosis in family members and an unclear history of self-harm, depression and possible persecutory beliefs in Mrs Steinberg. Dr Zimmerman says that Mrs Steinberg presented with a Major Depressive Disorder the symptoms of which worsened in the week prior to the offences. Dr Zimmerman said that information from the family suggests probably persecutory preoccupations in the lead up to the alleged offences that may have been associated with her depressive disorder. Dr Zimmerman said that such features would be consistent with a diagnosis of Depression with psychotic features.[26]
[26]Exhibit C4, Report of Dr Nina Zimmerman, p 14 [7]
Mental Impairment defence
Dr Zimmernan said that there is a clear diagnosis of Major Depressive Disorder with probably psychotic features. She said that Mrs Steinberg demonstrated a reasonable understanding of the nature of the charges against her and therefore is fit to stand trial. Dr Zimmerman said that, however, she is unable to offer any account of the alleged offence, stating she does not remember it. Dr Zimmerman said that it is difficult to state that she was aware of the nature and quality of her conduct at the time. Therefore it is difficult to establish a clear link between her actions and the symptoms of her illness.[27] Dr Zimmerman concludes:
“It is probable that given her lowered mood, agitation, anxiety and associated bizarre persecutory concerns that she was unable to reason with a moderate degree of sense and composure about the wrongfulness of her acts. This would mean that a defence of mental impairment would be available to Ms. Steinberg”.[28]
[27]Exhibit C4, Report of Dr Nina Zimmerman, p 15 [4-7]
[28]Exhibit C4, Report of Dr Nina Zimmerman, p 16 [2]
Report of Dr Danny Sullivan (dated 5 September 2010)
Dr Sullivan is a consultant psychiatrist. He interviewed Mrs Steinberg on 21 August 2010 at Thomas Embling Hospital specifically in relation to the preparation of a report for court in regard to whether or not the defence of mental impairment was open to her. Dr Sullivan conducted one interview with Mrs Steinberg.
History obtained
The history taken by Dr Sullivan regarding Mrs Steinberg and other family members is similar in nature to that taken by Dr Zimmerman.
Conclusions of Dr Sullivan
Dr Sullivan stated in his report:
“At the time of the alleged offence Ms. Steinberg had exhibited clear deterioration in mental state in preceding days, with affective lability, distress, and bizarre persecutory concerns related to the welfare of her children. It is possible that she was further disoriented or disinhibited by benzodiazepine medication. Her actions as alleged were bizarre and her motivation unclear, although it appears that she sought to kill herself and her children. At the time of the alleged offences I believe she was psychotic and was unable to reason with a moderate degree of sense and composure about the wrongfulness of her acts”.[29]
[29]Exhibit C5, Report of Dr Danny Sullivan p 7 [4]
Mental Impairment defence
Dr Sullivan concluded that the defence of mental impairment is available to Mrs Steinberg and assessed Mrs Steinberg as fit to be tried.
Injuries Noya Steinberg – report of Dr Ciara Earley (dated 14 May 2010)
Dr Ciara Earley reported on the injuries suffered by Noya as follows. Noya sustained three injuries: one incised wound to the right side of her neck, one incised wound on the right wrist, just below the wrist, and one incised wound on her left arm just below the wrist.[30] These wounds were a serious life threatening form of assault.[31] A urine test was taken from Noya on 30 April 2010. Paracetamol was detected, however no other drugs were detected.[32]
[30]Exhibit C3, Deposition, p 103 [6], p 104 [7], p 104 [8] and p 105 [1]
[31]Exhibit C3, Deposition, p 106 [2]. See also photographs on pages 169-180 of Exhibit C3
[32]Exhibit C3, Deposition, p 105 [2]
Injuries Erez Steinberg – report of Dr Ciara Earley (dated 14 May 2010)
Dr Ciara Earley reported on the injuries suffered by Erez as follows. Erez sustained three injuries: one incised wound to the right side of his neck, one incised wound on the right wrist, and one incised wound on his left wrist.[33] These wounds were a serious life threatening form of assault.[34]
[33]Exhibit C3 Deposition, p 111 [2]
[34]See photographs on pages 189-202 of Exhibit C3
A urine screen was performed on Erez on 30 April 2010. Benzodiazepines were detected. Also detected were Atropine, Bupivacaine, Citalopram and Laudanosine, none of which were administered by the hospital.[35] Benzodiazepines are a class of medications that are used to treat anxiety and convulsions. They have a sedative effect and may decrease respiratory effort. Citalopram is an antidepressant drug. Atropien dilates the pupil (in eye drops) and is used in the hospital or ambulance setting for slow heart rate and resuscitation. This was not used by the hospital or ambulance on Erez.[36] Benzodiazepines and Citalopram are commonly prescribed for adults with mood disorders and or anxiety.[37]
[35]Exhibit C3 Deposition, p 111 [6] and p 112, [9]
[36]Exhibit C3 Deposition, p 112 [10 – 11]
[37]Exhibit C3 Deposition, p 111 [1]
Injuries to Mrs Steinberg:
Photographs of Mrs Steinberg’s injuries were take by Leading Senior Constable Wesley Bryant.[38] Photographs of crime scene are contained in the photo book that was tendered.[39]
[38]See photographs on pages p 164 and 165 of Exhibit C3
[39]Exhibit C3
Mrs Steinberg sustained four injuries. There was a single wound to Mrs Steinberg’s right wrist approximately 2cm wide and 8 cms long. There were three wounds to her left wrist, two of these were the same size as the wounds to the right wrist but not as deep and one wound was much thinner and slightly longer and much shallower.[40]
[40]Exhibit C3 Deposition, p 52 [3]
Medical records are contained on page 137 – 147 and 148 – 163 of the depositions.
Psychiatric reports
I will refer again briefly to the reports of the two consultant psychiatrists. The first I shall refer to as the report of Dr Zimmerman of 26 October 2010. Dr Zimmerman is known to the Court as being a psychiatrist of standing. She opined in her report:
“In relation to the availability of a mental impairment defence as set out in s.20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, I believe that the following points can reasonably be made on the available information.
1. She has a clear diagnosis of major depressive disorder with probable psychotic features.
2. She demonstrated a reasonable understanding of the nature of the charges against her when she was next due to appear in court and who her legal representative is. She had no persecutory concerns about her lawyer, the judge or other people who will be present in the court. She understood the process of entering a plea, what pleas are available and what outcomes are associated with the different pleas. After discussion she appeared to understand her right to challenge a juror and the roles of those who will be present in the courtroom. I am of the opinion that Ms Steinberg is fit to stand trial.
3. Ms Steinberg is unable to offer any account of the alleged offence stating that she does not remember it. It is difficult, therefore, to state that she was aware of the nature and quality of her conduct. It also becomes difficult to establish a clear link between her actions, allegedly cutting the throats and wrists of two of her children, and the symptoms of her illness; lowered mood, anxiety, concern about the safety and the safety of her children and concerns around gangs and possible invaders of her home.
4. It is probable that given her lowered mood, agitation, anxiety and associated bizarre persecutory concerns, that she was unable to reason with a moderate degree of sense and composure about the wrongfulness of her acts. This would mean that a defence of mental impairment would be available to Ms Steinberg.”[41]
[41]Exhibit C4, Report of Dr Nina Zimmerman, p 15 – 16
Dr Sullivan, in his psychiatric report of 5 September 2010, said as follows:[42]
“I have considered the availability of a mental impairment defence according to the criteria set out at s.20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. At the time of the alleged offence Ms Steinberg had exhibited clear deterioration in mental state in the preceding days with effective lability, distress and bizarre persecutory concerns related to the welfare of her children. It is possible that she was further disoriented or disinhibited by benzodiazepine medication. Her actions as alleged were bizarre and her motivation unclear, although it appears that she has sought to kill herself and children. At the time of the alleged offences I believe she was psychotic and was unable to reason with a moderate of degree of sense and composure about the wrongfulness of the acts. I believe a mental impairment defence is clearly available. I have no concerns about Ms Steinberg's current fitness to be tried. She has some slowing thought processes and impaired memory for the events but would be capable of following the legal processes. Considering the evidence following the course of a trial and instructing her lawyers according to the criteria of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 she is fit to be tried in my opinion.”
[42]Exhibit C5, Report of Dr Danny Sullivan, p 7 [48]
I have read Dr Sullivan's report and heard his evidence. I have also read Dr Zimmerman's report and head her evidence. I accept the opinions and conclusions that they have expressed.
They both accept that at the time of the offences Mrs Steinberg was unable to reason with a moderate degree of sense and composure about whether her behaviour as perceived by reasonable people was wrong.
DEFENCE MADE OUT DIRECT VERDICT OF NOT GUILTY
I am therefore satisfied that the evidence establishes that the defence of mental impairment has been made out. Under s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 I direct that a verdict of not guilty because of mental impairment be recorded on each of the two counts of attempted murder.
LIABLE FOR SUPERVISION
I declare that Mrs Steinberg liable for supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
REMANDED IN CUSTODY
I have been provided with a certificate pursuant to s 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which states that there are facilities and resources necessary to provide assessment services. I order that under s 19 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 the defendant be remanded in custody to the Victorian Institute of Forensic Mental Health.
SECTION 41 REPORT
I order that, under s 41(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the time for the filing of the report required under s 41(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 be extended to within 60 days of today.
SECTION 41 REPORT
The further hearing of this matter is adjourned to 10.30am on Thursday 24 February 2011.
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