The Queen v Gibson
[2017] NTSC 47
•20 June 2017
CITATION:The Queen v Gibson [2017] NTSC 47
PARTIES:THE QUEEN
v
GIBSON, Samuel
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21625187 and 21626411
DELIVERED ON: 20 June 2017
DELIVERED AT: DARWIN
HEARING DATES: 2 May 2017 and 15 June 2017
JUDGMENT OF: BARR J
CATCHWORDS:
CRIMINAL LAW – Mental impairment – accused charged with a series of assaults – accused fit to stand trial – entered pleas of not guilty because of mental impairment – supervision order – nature of supervision order – considerations – accused receiving appropriate treatment for schizophrenia – significant clinical progress – non-custodial supervision order – hypothetical sentencing exercise – violent conduct directly related to schizophrenia – moral culpability lessened by mental impairment – general and specific deterrence less relevant factors – community protection – major review of custodial supervision order after two years
Criminal Code Part IIA
Criminal Code s 43H, s 43I(2)(a), s 43I(3)(c) & (d), s 43K(1), s 43ZA(1)(b), s 43ZC, s 43ZG(1) & (4)
R v Madrill [2013] NTSC 23; 275 FLR 449, R v Kunoth [2014] NTSC 41, referred to
REPRESENTATION:
Counsel:
Crown:T Grealy
Accused: P Maley
Solicitors:
Crown: Office of the Department of Public Prosecutions
Accused:Maleys Barristers and Solicitors
Judgment category classification: B
Judgment ID Number: Bar1706
Number of pages: 15
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Gibson [2017] NTSC 47
No. 21625187 and 21626411
BETWEEN:
THE QUEEN
AND:
SAMUEL GIBSON
Accused
CORAM: BARR J
REASONS FOR DECISION
(Delivered 20 June 2017)
Introduction
On 2 May 2017, the accused (also referred to as “the supervised person”) entered pleas of not guilty because of mental impairment to five counts in the indictment dated 22 November 2016. Dr Mrigendra Das had previously provided an opinion that the accused was fit to plead.[1] Particulars of the five counts are as follows:
Count 1
Unlawfully assaulting a worker, aggravated by harm
Section 188A(1) & (2)(a) of the Criminal Code
Count 2
Unlawful assault, aggravated by harm, unable to effectually defend and threat with a weapon
Section 188(1) & (2)(a), (d) & (m) of the Criminal Code
Count 3
Unlawful assault, aggravated by harm, male/female, unable to effectually defend and threat with a weapon
Section 188(1) & (2)(a), (b), (d) & (m) of the Criminal Code
Count 4
Unlawful assault, aggravated by harm, unable to effectually defend and threat with a weapon
Section 188(1) & (2)(a), (d) & (m) of the Criminal Code
Count 5
Unlawful assault, aggravated by harm, male/female, unable to effectually defend and threat with a weapon
Section 188(1) & (2)(a), (b), (d) & (m) of the Criminal Code
The facts in relation to the five offences charged were set out in the Crown Facts, which were admitted by the accused:[2]
Crown Facts
21625187 – Assault worker
1. On Friday 20 May 2016, the accused attended several licensed premises in the Darwin CBD area including Monsoons Bar on Mitchell Street, where he consumed an unknown quantity of liquor.
2. While at Monsoons the accused was aggressive towards one of the patrons, which was observed by manager, AW.
3. At approximately 3.30pm the accused was observed by the victim, WT, who was employed as a crowd controller at Monsoons, to be inside the bar area.
4. WT spoke to the manager who advised that the accused had been in earlier and was aggressive towards other patrons. The manager told WT that the accused was to be excluded from the licensed premises.
5. WT approached the accused and advised him that he was intoxicated and had to leave the licensed premises. The accused replied by saying “who was that” before looking at the manager and yelling “Fuck you, you cunts. Go back to Britain you cunts, this is bullshit”.
6. WT told the accused to calm down as he escorted the accused to the front veranda. As the accused got to the front veranda he became aggressive towards WT who was still trying to calmly escort the accused off the premises.
7. The accused turned to WT and said “don’t fucking touch me” before pushing him to the chest. WT pushed the accused back with both hands before the accused punched him to the face with a closed fist, causing one of his teeth to fall out.
8. The accused and WT then became involved in a physical altercation at the front doors causing bar staff to intervene and assist WT.
9. The accused was restrained on the ground before being calmed and let to his feet.
10. Once he was let to his feet, the accused walked out the front entrance of Monsoons and removed his shirt. As the accused walked along Mitchell Street he continued to look back at Monsoons, yelling abuse while using hand signals to threaten staff. This was recorded on police CCTV footage.
11. Police officers were advised of the incident and stopped the accused as he approached the intersection of Mitchell Street and Herbert Street. The offender’s details were obtained.
12. On Friday 27 May 2016, the accused was arrested by police officers at [Darwin suburban address]. The accused was conveyed to the Darwin Watch House where he was later charged and bail considered.
13. The accused took place in an electronic record of interview. He stated that:
(a)he didn’t remember being told to leave the licensed premises;
(b) the victim wanted to fight him;
(c)that he was extremely angry when he was acting in a disorderly manner on Mitchell Street.
14. At the time of the offence the victim was employed and on duty as a crowd controller at Monsoons Bar, Darwin. He was inside the licensed premises, in uniform and conducting his duties when assaulted. As the result of the assault, the victim received injury to his front tooth, causing the tooth to fall out, instant pain and bleeding.
15. At the time of the offence, Mitchell Street was a public street, open to and in use by the public.
21626411 – assaults
16. On 27 May 2016 the accused was bailed on one count of assault a worker, one count of disorderly behaviour in a public place and one count of failure to leave premises on request. He was bailed on the condition that he not enter the Darwin CBD bounded by Daly Street, The Esplanade, Bennett Street and McMinn Street between 7pm and 7am daily. The accused was bailed to 21 June 2016.
17. On Wednesday 1 June 2016 the accused consumed beer and spirits in bushland prior to the State of Origin match. At about 8:45pm the accused walked to Globetrotters Lodge on Mitchell Street and watched the game before leaving the bar and walking along Mitchell Street. Whilst walking along Mitchell Street he was approached by two males. Together they formulated a plan to find Aboriginal people and bash them.
18. The accused and the two other males then walked to the Esplanade opposite the Char restaurant. The accused armed himself with a metal pole prior to walking to the Esplanade.
19. The accused than walked up a group of Aboriginal people sitting on a picnic table in company with two other males. Neither the accused nor the males were known to the Aboriginal people. The offender, without warning, assaulted four of the people sitting at the picnic table, namely VC (a male), FW (a female), JL (a female) and BB (a male). All four victims had been drinking a quantity of alcohol and as a result were unable to respond to the attack or protect themselves.
20. The accused first threw FW to the ground before striking her once to the left side of her body with a metal pole. FW had put her arms up and rolled onto her right side to protect herself from the hit. The accused then kicked FW and stomped on her three times.
21. The accused then walked over to VC and JL. The accused hit JL with the metal pole, causing her to fall to the ground. JL remained under the table for the remainder of the altercation.
22. The accused then punched VC to the back of the head. VC fell to the ground and the accused kicked and punched him whilst he was on the ground. The accused than struck VC with a metal pole to the body. VC was also hit to the elbow with the metal pole.
23. The accused then struck BB to the head with the steel bar causing him to fall to the ground. As a result BB had a laceration to the head which bled into his eyes, preventing him from seeing his attackers.
24. The accused and the two other males subsequently left the area. The victims were assisted by bystanders, who called an ambulance. VC was conveyed to RDH. The following injuries were detected:
(a)a superficial laceration to the left parietal/occipital region of the scalp;
(b) a deep laceration to the left elbow
His elbow was washed out and closed with 7 sutures. The head laceration was washed out with saline and dressed.
25. On 7 June 2016, VC was again admitted to the RDH as a result of an infection to the wound on his left elbow (cellulitis). He underwent an operation on 8 June 2016 to deal with the infection. The wound was incised and drained.
26. FW received bruising to her body. BB was treated by the ambulance for the cut above his eye. JL did not receive any injuries.
27. At 10.55am on Friday 3 June 2016 the accused was arrested and lodged in the cells in accordance with section 137 of the Police Administration Act. The accused later participated in a formal electronically recorded interview and made full admissions to the assaults. He stated:
(a) “I’m guilty of this”;
(b)“I do remember, I punched someone, I stomped an Aboriginal lady, a coupla times in the head, I punched an Aboriginal man, but in the back of the head, I went to kick someone in the - in the head, I got tripped over, so I got a metal pole and I – I flogged and, I knew, two or three Aboriginal people up. Then I got tripped, I went to elbow someone in the head, and I got tripped again. And I dunno what ensued from that, I might have picked the pole up again and started bashing more people, I dunno.”
(c)“I’m, I’ve, they – they some types led me to the park, and I’m, I was the one that did the damage”.
28. At no stage did any of the victims give the accused permission to assault them. At the time of the offence, Knuckey Street and the Esplanade were both public places. During the attack by the accused the two co-offenders were actively involved by striking the victims with punches.
Mental impairment
29. The accused has been diagnosed with schizophrenia, with onset since about 2012. The accused was assessed on two occasions by Consultant Forensic Psychiatrist Dr Mrigendra Das.
30. In the opinion of Dr Das, the accused is fit to plead to the charges against him. In a report dated 10 March 2017, Dr Das found that the accused is able to understand the nature of a trial and follow the proceedings and evidence. Dr Das also found that the accused was able to give instructions to his legal counsel.
31. In the opinion of Dr Das, the accused was suffering from a mental impairment on both 20 May 2016 and 1 June 2016 which establishes a defence of mental impairment. In a report dated 12 April 2017,[3] Dr Das found that on 20 May 2016 and 1 June 2016 the accused was:
(a) experiencing significant symptoms of schizophrenia;
(b) labouring under the influence of paranoid delusions;
(c)agitated, guarded and suspicious of the environment around him;
(d)prone to responding to cues in the environment as threatening and persecutory with him responding in an aggressive manner to perceived threats;
(e)prone to a high degree of impulsivity which led to him reacting to perceived threats without due rational consideration in his thought process;
(f) not in full control of his actions.
32. In the opinion of Dr Das, the accused was not aware of the nature and quality of the conduct and lacked the sense and composure to know what he was doing was actually wrong.
With the consent of both prosecution and defence, I accepted the pleas entered by the accused and formally recorded findings of “not guilty of the offence because of mental impairment” pursuant to s 43H Criminal Code,[4] for each of the five offences charged in the indictment.
The findings made by me triggered the operation of s 43I(2)(a) Criminal Code, pursuant to which I declared the accused liable to supervision under Div 5 of the Criminal Code.
After the Crown Facts had been formally agreed and read onto the Court record, I granted bail to the supervised person, on the same terms as had applied for the preceding months, and ordered a report from a psychiatrist pursuant to s 43I(3)(c)and (d) Criminal Code. My principal concern was to obtain advice as to the appropriate regime and conditions for a non-custodial supervision order.
In his report dated 5 June 2017, provided in response to the Court’s order, Dr Das confirmed that the supervised person had remained under the care and follow-up of the Forensic Mental Health Team (“FMHS”). Dr Das is the Senior Staff Specialist (Consultant Forensic Psychiatrist) to the Top End Mental Health Service. Dr Das noted that the supervised person continued to maintain significant clinical process, in that: his presentation in self-care had improved; he no longer presented as hostile; his behaviour was no longer odd; he had not displayed aggressive intent or behaviour; his mood had improved and his depressive and negative symptoms had lessened; he no longer presented with any delusional or hallucinatory symptoms; he was engaging in more recreational activities and had an active life-style; he maintained abstinence from alcohol and drugs and was compliant with medication prescribed; and his overall insight into his mental illness had improved. He was now accepting of treatment and appreciated the importance of abstinence from illicit substances and alcohol.
I set out below the recommendations made by Dr Das:
7. Recommendation
7.1My opinion about his psychiatric diagnosis remains unchanged from my last report to the Court. Mr Samuel Gibson is a twenty-six year old man who presents with a major mental illness of schizophrenia with onset since about 2012. This illness has been characterised by a decline in his personality, social withdrawal, paranoid delusions, in particular delusions about his parents being imposters, other persecutory delusions, auditory hallucinations, agitation, disorganised behaviour. His illness has been associated with significant substance misuse including alcohol and interpersonal violence. His mental state has now improved significantly with ongoing treatment and care he is received under the supervision of the FMHT.
7.2A custodial disposition for Mr Gibson is very likely to be damaging to his mental illness and in the medium to long term increase risk of self-harm and suicidal behaviour.
7.3In my opinion Mr Gibson would best be made subject to a Non-Custodial Supervision Order (NCSO). I consider that conditions provided by a NCSO are necessary to offer safeguards in the management of his mental illness of schizophrenia and to prevent a relapse of this illness which is very likely to be associated with aggressive behaviour and risk of harm to others. I also consider that the provisions of a NCSO will assist in managing his substance misuse disorder.
7.4I have considered the possibility of a Community Management Order (CMO) under the Mental Health and Related Services Act, however in my opinion any conditions of a CMO would not be as effective in enforcing treatment in the event of non-compliance. I also understand that, in the circumstances of Mr Gibson having been declared liable to supervision, the making of a supervision order under the Code is inevitable at this stage.
7.5I therefore consider an NCSO would be the least restrictive option in Mr Gibson’s treatment, rehabilitation and risk management. I recommend that he should be subject to a NCSO, including the following conditions:
i) Residence at a specified address (his father’s house).
ii) Monthly review with his case manager;
iii) Two monthly reviews by a consultant psychiatrist.
iv) Abstinence from alcohol and illicit substances.
v) Compliance with prescribed psychotropic medication and associated blood testing.
vi) Random blood or urine illicit substance testing, and breath analysis for alcohol.
vii) Regular attendance for substance misuse counselling.
viii) Psycho-education with a mental health professional.
ix) Support for psychosocial and vocation rehabilitation.
I accepted the opinions and recommendations set out in the previous paragraph.
Under s 43ZC Criminal Code, a supervision order is for an indefinite term. However, s 43ZC is subject to s 43ZG, subsection (1) of which requires that, when the Court makes a supervision order, it makes a term “in accordance with subsection (2), (3) or (4) which is appropriate for the offence concerned”.
Subsection (2) of s 43ZG requires that the term fixed under subsection (1) be “equivalent to the period of imprisonment or supervision (or aggregate period of imprisonment and supervision) that would in the Court’s opinion have been the appropriate sentence to impose on the supervised person if he or she had been found guilty of the offence charged”.
The hypothetical sentencing exercise under s 43ZG requires the Court to assume that the supervised person has been found guilty of the offence or offences charged, and thus by necessary implication that mental impairment was not such as to affect the making of that assumed finding by providing a defence under s 43C(1) Criminal Code. Nonetheless, s 43ZG does not otherwise exclude the application of ordinary sentencing principles, and thus the symptoms of the supervised person’s schizophrenia (his paranoid delusions, his agitated and suspicious state, his perception of non-existent threats, his high degree of impulsivity and lack of rational consideration) may still be taken into account. In my opinion, the hypothetical sentencing exercise required by s 43ZG Criminal Code is not an appropriate vehicle for either general or specific deterrence. That still leaves for consideration the need for community protection in sentencing. However, that would be best achieved, as Dr Das pointed out, by ongoing supervision under the conditions of a non-custodial supervision order.
Pursuant to s 43ZG(4) Criminal Code, because the supervised person was charged with the commission of more than one offence, I must fix a term under s 43ZG(1) by reference to the offence carrying the longest maximum period of imprisonment. That meant that I was required to fix a term by reference to the first count (the aggravated assault of the worker, WT), notwithstanding that, in ordinary sentencing, I would have imposed higher sentences for count 2 (the aggravated assault of VC) and count 3 (the aggravated assault of FW) than for count 1.[5]
Pursuant to s 43ZG(1) read with s 43ZG(4) Criminal Code, I was of the opinion that a term of imprisonment of two years would have been the appropriate sentence to have imposed on the supervised person if he had been found guilty of the offence charged as count 1.
I therefore fixed a term of two years for the purposes of the supervision order. The term so fixed was backdated by 127 days (to reflect time spent in custody), and deemed to have commenced on 8 February 2017 pursuant to s 43ZG(4B) Criminal Code.
I ultimately determined that I should make a non-custodial supervision order pursuant to which the supervised person would be released into the community under appropriate conditions. In so ordering, I relied substantially on the opinion of Dr Das.
The final orders made by me were as follows:
1.Declaration that Samuel Gibson (“the supervised person”) is liable to supervision under Div 5, pursuant to s 43(I)(2)(a) Criminal Code.
2.The supervised person is subject to a non-custodial supervision order pursuant to s 43ZA(1)(b) Criminal Code.
3.A term of two years is fixed pursuant to s 43ZG(1) read with s 43ZG(4) Criminal Code.
4.The term of two years deemed to have commenced on 8 February 2017.
5.The appropriate person is to file and serve a major review report pursuant to s 43ZG(5) by close of business 5 October 2018 and the matter is listed for major review on 7 November 2018 at 9.00 am.
6.While subject to the non-custodial supervision order, the supervised person is to remain under the care and treatment of the Chief Executive Officer Department of Health (the CEO), his or her staff, servants and agents and in particular, the Top End Mental Health Service (TEMHS).
7.The supervised person is to reside at suitable premises as identified by the treating team at TEMHS. He is not to leave the Northern Territory of Australia without prior consultation and approval from TEMHS.
8.The supervised person is to co-operate fully with the treatment plan offered to him by the treating team at TEMHS, and in particular he is to:
(a)comply with all reasonable directions of TEMHS, including taking of prescribed medications, the testing, assessment and other medical interventions necessary as adjuncts to the taking of those medications;
(b)comply with all ongoing assessments relevant to his mental illness that may be ordered as part of his treatment plan;
(c)participate in any counselling or psycho-education relevant to his mental illness as deemed necessary or appropriate by the treating team at TEMHS;
(d)not consume any alcohol or illicit or dangerous drug, and to submit to testing of breath and bodily samples if requested to do so by TEMHS staff or a member of the Northern Territory Police Force;
(e)attend any rehabilitation or treatment program relevant to the misuse of alcohol and illicit or dangerous drugs if required to do so by the treating team.
9.The appropriate person is to file and serve a periodic review report pursuant to s 43ZK by close of business on 5 January 2018.
10.The matter is listed for periodic review on Wednesday 7 February 2018 at 9.00 am.
11.The parties have liberty to apply.
--------------------------------
[1] Report dated 10 March 2017, par 12.1. The presumption in s 43K(1) Criminal Code was not displaced.
[2]The Crown Facts have been edited, inter alia, to anonymize the names of victims and witnesses.
[3]Report dated 12 April 2017 pars 10.5, 10.6 and 10.7.
[4]See R v Madrill [2013] NTSC 23; 275 FLR 449 at [25].
[5]See my observations and conclusions to similar effect in R v Kunoth [2014] NTSC 41 at [49].
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