R v Steinberg (No 2)
[2011] VSC 266
•11 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0153 of 2010
| THE QUEEN |
| v |
| STEINBERG |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2011 | |
DATE OF SENTENCE: | 11 May 2011 | |
CASE MAY BE CITED AS: | R v Steinberg (No 2) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 266 | This version edited for the purposes of publication. |
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CRIMINAL LAW – Accused stood trial for the attempted to murder of two of her children – Accused found not guilty on the grounds of mental impairment – Matters to be taken into account in deciding whether to order a custodial or non custodial order - Section 40 of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
CRIMINAL LAW – Mental impairment – Custodial order made where accused found not guilty of attempted murder on grounds of mental impairment – Consideration of mandatory nominal term of supervision order – Nominal term 25 years – Section 28 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:
INTRODUCTION AND SUMMARY
Mrs Steinberg stood trial on two counts of the attempted murder of two of her children. She pleaded not guilty and relied on the defence of mental impairment. On 13 December 2010, I directed that a verdict of not guilty be recorded on each of the two counts of attempted murder. I found that the defence of mental impairment had been made out. I declared that Mrs Steinberg was liable for a supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
The Act provides that if a court declares that a person is liable to a supervision under Part 5, the court must make a supervision order in respect of the person.[1] The supervision order may commit a person to custody, subject to certain conditions, or release the person on conditions decided by the court and specified in the order.[2]
[1]Section 26(1).
[2]Section 26(2).
The Act requires that I have regard to the nature of Mrs Steinberg’s mental impairment and the relationship between it and her offending conduct amongst other matters in deciding whether or not to commit her to custody or release her. In so doing I have taken into account the submissions of counsel and read the reports and recommendations of Dr Zimmerman and Dr Anthony Cidone.
After having regard to these matters, I have decided to commit Mrs Steinberg to custody.
MATTERS THE COURT IS TO HAVE REGARD TO
Section 40 provides, under the heading of “Matters to which the court is to have regard,” as follows:
In deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to -
(a) the nature of the person’s mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(c) whether the person is, or would if released be, likely to endanger themselves, another person or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
THE NATURE OF MRS STEIBERG’S MENTAL IMPAIRMENT, CONDITION AND DISABILITY AND ITS RELATIONSHIP TO HER OFFENDING CONDUCT
I find that the relevant circumstances of the offending conduct were fully described in the Crown’s opening at the trial on 13 December 2010 as follows:
“1.The accused, Christine Steinberg (‘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.
2.At the time of the offences, 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.
3.Noya and Erez are the complainants in this matter and were aged 3 1/5 years and 7 months respectively at the time the offences occurred.
4.On 28 April 2010 (the night before the offences) Chen had asked Steinberg’s mother, Effie Miros (‘Effie’), to come to their home in Tullius Avenue, Oakleigh East.
5.Steinberg had not been sleeping and looked unsettled. She had been diagnosed several days earlier as suffering from depression and was prescribed Tamazapan.
6.Upon attending the home Effie heard Steinberg and Chen arguing. Steinberg told him that she was not coping with the children and the house.
7.After things calmed down between them, Effie asked Chen to make sure that Steinberg took her medication, which he reports he did. Steinberg became drowsy and was taken to bed by her husband. She is reported by him to have slept through the night.
8.Effie slept in the children’s room.
9.Mid morning the next day, after Chen had gone to work, Steinberg, Effie and the three children went to Effie’s home in Delmore Crescent, Glen Waverley.
10.For the rest of the morning and early afternoon, things were uneventful at Delmore Crescent.
11.After lunch, George Milos (‘George’), Steinberg’s father, was in the front yard with his grandson Samuel. Effie and Steinberg’s sister Vicki Miros (‘Vicki’) were out shopping and 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.
12.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’.
13.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 wouldn’t open. She kicked harder and the door then opened.
14.Effie saw Steinberg lying on the bed on top of the two children. The area was covered in blood.
15.The little girl, Noya was breathing very deeply and was crying. The little boy, Erez was pale.
16.Effie pushed 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.
17.She called out to Vicki to call an ambulance, asking that they come quick as she felt they were losing the children.
18.Vicki grabbed Noya and called the ambulance.
19.The Metropolitan Fire Brigade (‘MFB’) were first on the scene.
Ambulance attendance on Steinberg:
20.The ambulance containing Ambulance Paramedics Meagan Leembruggen and John Berry arrived at 3.05pm. They entered the home and saw the children being attended to by MFB officers.
21.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.
22.Shortly after their assessment of the children they were made aware of a third patient, Steinberg. John Berry made radio report to dispatch, whilst Meagan Leembruggen (‘Leembruggen’) attended to Steinberg. Leembruggen saw that 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 Steinberg, administered oxygen and intravenous fluids and prepared her for transport. During this time the level of Steinberg’s consciousness improved and she became responsive to demands.
23.Bird also observed Steinberg’s wrist wounds to be deep, multiple full thickness lacerations. Once she was placed into the ambulance Bird observed Steinberg raise her hands to her face and cried uncontrollably.
24.Senior Constable Bryant (‘Bryant’) rode in the back of the ambulance with Leembruggen. Whilst in the ambulance he heard Steinberg say ‘where’s my babies?’ and ‘I wanna die’. He also had an opportunity to photograph her wounds.
25.Bryant also attempted to obtain from 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 4 assorted white and yellow pills mixed in peanut butter.
26.Leembruggen recalls asking Steinberg what happened. Steinberg answered ‘I don’t know I don’t know what’s happening’.
27.En route to the Royal Melbourne Hospital 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:
28.After having assisted Leembruggen with 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:
29.MICA paramedic Campbell Asker (‘Asker’) attended the scene with Bird.
30.Asker attended to the injuries sustained by the infant Erez. 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.
31.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.
I find that the nature of Mrs Steinberg’s mental impairment was also dealt with in the Crown’s opening as follows:
Report of Dr Nina Zimmerman – Forensicare (dated 26.10.10):
32.Interviewed on 8 October 2010 specifically in relation to the preparation of the report however had been her treating psychiatrist at Thomas Embling Hospital from her admission on 10 May 2010 until her discharge back to Dame Phyllis Frost Centre on 2 September 2010. Numerous interviews conducted.
History obtained:
33.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 .
34.Family history of depression: Mrs Effie Miros has a history of depression. Her sister Vicky, had a history of psychiatric illness in her early 30’s. Central East Area Mental Health Service indicates Vicky had a history of psychosis and that both parents had histories of depression.
Steinberg:
35.Steinberg reported no significant medical history. No seizures, no loss of consciousness.
36.1987 – Minimised the importance of a reported overdose in her twenties. Box Hill Hospital in 1987, Steinberg overdosed on her mother’s antidepressant medication after an argument with her father. She said she took tablets because she was tired but had no intention of overdosing. She received no follow up care.
37.2004 – The information from the Central East Area Mental Health Service Crisis Assessment and Treatment Team (CATT) indicated that in 2004 Effie had referred Steinberg because of concerns about bizarre behaviour and persecutory ideation focused on her sister. Effie had indicated that 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. Steinberg and her parents adamantly denied this occurred. DIAGNOSIS – at the time was ‘cultural generational conflict with parents’, although it was noted that there were possible depressive psychotic symptoms. Follow up arranged but appointment cancelled and no follow up occurred.
38.1999 – Steinberg’s GP (Dr Angela Kent) reported that Steinberg had been diagnosed with depression at a Forest Hill Clinic in 1999 and commenced on antidepressant Paraxetine but did not appear to have taken her medication.
39.6 May 2003 – Steinberg was seen by Dr Kent’s clinic for depression before her marriage. She was given antidepressant setraline but did not attend for follow up and the CAT Team was involved. There was no further follow up after the 20th of May.
40.2008 – 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.
41.2010 – Just prior to the offending, 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 slept in the hallway in a sleeping bag for some of the time.
42.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. Her mother indicates that Steinberg also said that there were men in the roof of her house and that her husband had said that if she couldn’t cope with the children he would sell them for adoption.
43.There are reports which 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.
44.Her sister Vicki reports that two weeks prior to the offences Steinberg spoke of a man being under her bed and having taken her daughter overnight and violated her.
45.She was prescribed sleeping tablets in the days prior to the offences.
46.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.
47.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.
Conclusions of Dr Zimmerman:
48.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 Steinberg. She presented with a Major Depressive Disorder the symptoms of which worsened in the week prior to the offences. 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. Such features would be consistent with a diagnosis of Depression with psychotic features.
49.S.20 Mental Impairment defence – There is a clear diagnosis of Major Depressive Disorder with probably psychotic features, she demonstrated a reasonable understanding of the nature of the charges against her and therefore is fit to stand trial. However, she is unable to offer any account of the alleged offence stating she does not remember it. Therefore 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.
50.“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”.
Report of Dr Danny Sullivan (dated 5.9.10):
51.The history taken regarding Steinberg and other family members are similar in nature to that taken by Dr Zimmerman.
52.Dr Sullivan assessed Steinberg on 21 August 2010 at Thomas Embling.
53.Conclusion: The defence of mental impairment is available to Steinberg. “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”.
54.Dr Sullivan assessed Steinberg as fit to be tried.
I find that the nature of the injuries sustained be reason of her offending conduct was as set out in the Crown opening as follows:
Injuries Noya Steinberg – report of Dr Ciara Earley (dated 14 May 2010):
55.Injury 1 – Wound to right side of Noya’s neck, an incised wound, margins are sharp and clearly defined. It extends from the lateral aspect of the sternocleidomastoid muscle across the belly of the muscle and towards the midline of the neck (the trachea).
56.Injury 2 – Wound to Noya’s right wrist. The wound extends from the ulnar aspect of the wrist towards the radial aspect. It is an incised wound. Wound edges clearly defined. The wound is located just below the wrist.
57.Injury 3 – The injury is located on Noya’s left arm. The wound extends from the radial aspect of the forearm to the ulnar aspect. It traverses the entire width of the forearm just below the wrist. It is an incised wound with the margins clearly defined.
58.Urine test taken on 30 April 2010. Paracetamol was detected. No other drugs detected.
59.These wounds are a serious life threatening form of assault.
Injuries Erez Steinberg – report of Dr Ciara Earley (dated 14 May 2010):
60.Injury 1 – Wounds on left wrist were 3.5 cm’s. It extends from the radial aspect of the forearm to the ulnar side. It is an incised wound, not a laceration, the margins are sharp and clearly defined. Some subcutaneous tissue is visible in the wound.
61.Injury 2 – Is a wound on the right wrist. It is an incised wound, and is 5 cm’s in length. It is widest in the midline of the forearm with tapering edges both to the radial and ulna side.
62.Injury 3 – Is to Erez’s neck. It is an incised wound with clearly defined margins and is 4.5 cm’s in length. The width of the wound is wider as it extends to the lateral right side of the neck from the midline. There is subcutaneous tissue that is likely to be muscle visible in the wound.
63.These wounds are a serious life threatening form of assault.
64.A urine screen was performed on 20 April 2010. Benzodiazepines were detected. Altropine, Bupivacaine, Citalopram and Laudanosine were also detected – none of these administered by the hospital.
65.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. Not used by hospital or ambulance on Erez.
66.Benzodiazepines and Citalopram are commonly prescribed for adults with mood disorders and or anxiety.
Injuries to Steinberg:
67.Photographs of her injuries were taken by Leading Senior Constable Wesley Bryant.
68.The injury observed four wounds. There was a single wound to Steinberg’s right wrist approximately 2cm wide and 8 cm’s 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.
I also refer more fully to the report of Dr Zimmerman of 26 October 2010.[3] She opined in her report as follows:
“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.
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.”
[3]Exhibit C4.
Dr Sullivan, in his psychiatric report of 5 September 2010,[4] said as follows, paragraph 48:
“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.”
[4]Exhibit C5.
At the trial I accepted the opinions and conclusions expressed by Dr Zimmerman and Dr Sullivan including that at the time of the offences Mrs Steinberg was suffering from a major depressive disorder with probable psychotic features.
They both accepted that at the time of the episode the accused was unable to reason with a moderate degree of sense and composure about whether her behaviour as perceived by reasonable people was wrong.
I was therefore satisfied that the evidence established that a defence of mental impairment had been made out. I directed under s 21(4)(a) of the Act that a verdict of not guilty because of mental impairment be recorded on each of the two counts of attempted murder.
WHETHER MRS STEINBERG IS, OR WOULD IF RELEASED BE, LIKELY TO ENDANGER HERSELF, ANOTHER PERSON OR OTHER PEOPLE GENERALLY BECAUSE OF HER MENTAL IMPAIRMENT AND THE NEED TO PROTECT PEOPLE FOM SUCH DANGER
Under the Act,[5] a report by a registered medical practitioner or registered psychologist must be filed with the court on the mental condition of Mrs Steinberg containing:
[5]Section 41(1).
(a) a diagnosis and prognosis of the condition or an outline of the person’s behavioural problems; and
(b) the person’s response to treatment, therapy or counselling (if any); and
(c) a suggested treatment or other plan for managing the condition.
Dr Zimmerman has provided such a further report to the court.[6] I accept Dr Zimmerman’s opinions as stated in the report.[7]
[6]Report of 6 February 2011.
[7]This report deals with Mrs Steinberg’s rehabilitation and for privacy reasons has been redacted.
[Paragraph redacted from this version.]
[Paragraph redacted from this version.]
Dr Anthony Cidone, consultant psychiatrist was asked to prepare a report for the court by Mrs Steinberg’s solicitors. His report was tendered.[8] I also accept Dr Cidone’s opinions as stated in the report. [9]
WHETHER THERE ARE ADEQUATE RESOURCES AVAILABLE FOR THE TREATMENT AND SUPPORT OF THE PERSON IN THE COMMUNITY
[8]Report of 17 April 2011.
[9]This report deals with Mrs Steinberg’s rehabilitation and for privacy reasons has been redacted.
I have not had to consider this issue, as I have accepted the reports of the psychiatrists that Mrs Steinberg should be subject to a custody order. I confirm that I have received a certificate under s 47 stating that the facilities or services necessary for such an order are available.[10]
[10]See s 26(3).
OTHER RELEVANT MATTERS.
Mr Brustman SC on behalf of Mrs Steinberg informed me that in view of the reports of the psychiatrists his client would be seeking a review of any supervision order in six months. I took this to be an application for a variation or a revocation of the supervision order under s 31 of the Act.
After having regard to all these matters, I consider that the appropriate order is to make a supervision order that commits Mrs Steinberg to custody in an appropriate place.
THE NOMINAL TERM
Under the Act,[11] the Court must set a nominal term of a supervision order in accordance with the table there set out. Mrs Steinberg has been found not guilty of the offence of attempted murder (two counts).
[11]Section 28(1)
During the hearing the question arose whether the nominal term is 25 years or 12½ years. This arises out of the issue whether or not attempted murder is a serious offence for the purposes of s 28(1). The section provides:
28Nominal term of supervision order
(1)The court must set a nominal term of a supervision order in accordance with the following table—
Offence person found not guilty of because of mental impairment or found at special hearing to have committed
Nominal term(a) murder or treason
25 years
(b) a serious offence (within the meaning of the Sentencing Act 1991) other than—
(i) murder; or
(ii) an offence against section 20 of the Crimes Act 1958 (threats to kill)
a period equivalent to the maximum term of imprisonment available for the offence
(c) any other offence for which there is a statutory maximum term of imprisonment
a period equivalent to half the maximum term of imprisonment available for the offence
(d) any other offence punishable by imprisonment but for which there is no statutory maximum term
a period specified by the court
(2) If a person—
(a) is found not guilty because of mental impairment of more than one offence; or
(b) is found at a special hearing to have committed more than one offence—
the nominal term must be calculated by reference to the offence that carries the longest maximum term of imprisonment.
Under the Sentencing Act 1991, attempted murder is a serious offence. Under the Sentencing Act 1991, “serious offence” is defined to mean, inter alia, an offence of attempting to commit an offence referred to in any of the preceding paragraphs of the definition, which includes attempting to commit the offence of murder.
In R v Bartel[12] Coghlan J held that attempted murder did not fall within paragraph (b) of the table set out in s 28(1) of the Act. He said:
[6] It became clear in argument that there are a number of anomalies that arise pursuant to the interpretation pressed by Mr Lincoln. For instance, the nominal term for conspiracy to murder or incitement to murder would be life. These two offences would be the only offences for which “life” was the nominal term. No other offence which carries life imprisonment is a serious offence within the meaning of s 3 of the Sentencing Act 1991 but would be anomalous, in their own right, because they do fit within s 28(1)(c)or (d).
[7] However when regard is had to the fact that in s 28(1)(b) of the Act, murder has been excluded from the definition of a serious offence for the purpose of s 28(1) of the Act, then it must follow that so do those offences that would ordinarily be caught by (f) of the definition of “serious offence” pursuant to s 3 of the Sentencing Act 1991. If murder itself is not a “serious offence” for these purposes then incitements, conspiracies and attempts are not either. It also follows that the anomaly presented by the offences mentioned above also applies to incitement and conspiracy to commit murder.
[8] The appropriate nominal term for attempted murder is twelve and a half years.
[12][2008] VSC 423.
Since so deciding, in R v Kabbout[13] Coghlan J has reconsidered the issue and held that the nominal term of supervision is 25 years where the court made a custodial order under s 24(1)(b) in relation to a charge of attempted murder. In R v Kabbout he stated that the fact that the treatment of incitement to murder and conspiracy to murder is anomalous does not justify departing from the unambiguous provision relating to attempted murder. He added that he was not comfortable with this situation and he thought the legislature should look at it as well as at the treatment of incitement to murder and conspiracy.[14] For the following reasons, I agree.
[13]Coghlan J 18 April 2011.
[14]Transcript of discussion in R v Kabbout on 18 April 2011 at pp 19-20.
Paragraph (b) of the table in s 28(1) of the Act acknowledges that murder is a serious offence within the meaning of the Sentencing Act 1991, but excludes it from the offences caught by paragraph (b). This can be explained by the fact that the serious offence of murder is dealt with in paragraph (a).
The heading to the table suggests that within each of the categories in paragraphs (a), (b), (c) and (d) are identified offences. The heading says “Offence person found not guilty of because of mental impairment or found at a special hearing to have committed.” In other words the table divides up into four categories a range of offences. The offences caught by paragraph (b) are offences which are classified as a serious offence within the meaning of the Sentencing Act 1991 other than some named offences otherwise classified as serious offences under the Sentencing Act 1991.
Attempted murder is classified as a serious offence and the fact that murder is excluded from category (b) should not alter that fact. Murder is expressly dealt with in category (a).
In R v Bartel, Coghlan J referred to the position of conspiracy to murder and incitement to murder and said the nominal term would be life imprisonment. His Honour said this would be “anomalous.”
These offences are defined as serious offences under the Sentencing Act 1991.[15] The period equivalent to the maximum term of imprisonment available for incitement to murder is provided in s 321I of the Crimes Act 1958. It provides that the person is liable to:
“(i) level 1 imprisonment (life); or
(ii) imprisonment for such other term as is fixed by the court as the court determines“.
[15]Section 3 serious offence (f).
A similar provision applies to conspiracy to murder.[16] On the other hand, if incitement to murder did not fall within category (b) in the table it would fall within (c) as it is an offence for which there is a statutory maximum term of imprisonment. The same applies to conspiracy to murder.
[16]Section 321C of the Crimes Act 1958.
In that case the period of the nominal term would be equivalent to half of the maximum term of imprisonment available for the offence, being half of life imprisonment. It is not possible to fix a nominal term of half of life imprisonment.
If attempted murder falls under category (b) of s 28(1) of the Act, the nominal term must be a period equivalent to the maximum term of imprisonment available for the offence of attempted murder. As explained below, the maximum term available for the offence of attempted murder is imprisonment for 25 years.
Section 321P of the Crimes Act1958 contains a table with two columns of various sentences. Under s 321P, a person convicted of attempting to commit an offence is liable, if the penalty for the relevant offence is set out by reference to an expression specified in column one of the table, to the penalties set out opposite it in column two of the table.
Section 3 of the Crimes Act provides the punishment for murder as follows:
“Notwithstanding any rule of law to the contrary, a person convicted of murder is liable to-
(a) level 1 imprisonment (life); or
(b) imprisonment for such other term as is fixed by the court-
as the court determines.”
Returning to s 321P and the penalties for attempt, the maximum penalty for murder “level 1 imprisonment (life)” is set out in column one of the table. The maximum penalty for attempted murder of “level 2 imprisonment (25 years maximum)” is set out opposite.
Accordingly, on this construction of s 28(1) of the Act the nominal term for the serious offence of attempted murder is 25 years.
Accordingly, I set a nominal term of a supervision order of 25 years.
I order that:
(a)Christine Steinberg is liable to a custodial supervision order pursuant to section 24(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
(b)Christine Steinberg is committed to the custody of the Victorian Institute of Forensic Mental Health.
(c)Pursuant to section 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 the nominal supervision order is 25 years, from and including 13 December 2010.
ADDENDUM
During the hearing Mr Brustman SC, who appeared for Mrs Steinberg, raised a matter concerning Mrs Steinberg’s time at Thomas Embling Hospital. Mr Brustman wished to place on record that Mrs Steinberg had been repeatedly assaulted whilst in custody at Thomas Embling. I also made comments about his complaint. Regrettably the transcript recording of what was said failed and to overcome this failure I will set out here my recollection of the substance of what was said. This record should not be treated as part of my reasons for the orders I have made.
Mr Brustman said as follows: Mrs Steinberg has been subjected to persistent assaults whilst in the Barossa unit of the Tomas Embling Hospital. She was first assaulted on 15 April 2011 when she was punched and kicked in the head. A chunk of her hair was pulled out. An MRI scan was conducted and she suffered a strained neck. She has undergone physiotherapy treatment for her injured neck.
She has been assaulted on four further occasions. In one the assailant threw a cup of hot coffee over her. The assailant has also threatened to kill her.
The matter has been reported to the police who are investigating the matter but no action has been taken to date against the assailant. The assaults have also been reported to the hospital staff.
The assailant is a schizophrenic.
The hospital’s response to these assaults has been merely to advise Mrs Steinberg to stay in her room away from the assailant.
Mr Brustman said that the hospital owed Mrs Steinberg a duty of care to protect her. Mr Brustman said that Mrs Steinberg was scared.
Ms Borg for the Crown, said she will follow up to make sure that Mrs Steinberg’s complaints are being addressed.
I repeated these complaints and commented that I assumed that the hospital would address these issues. I said I realised that they had a very difficult task dealing with patients with psychiatric problems but I agreed with Mr Brustman that Mrs Steinberg did not appear to be adequately cared for. I queried why the assailant had not been separated from Mrs Steinberg.
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