Supreme Court New South Wales Medium Neutral Citation: R v Coluccio (No 2) [2020] NSWSC 1742 Hearing dates: 4 December 2020 Decision date: 04 December 2020 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: (1) Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990, Vincenzo Coluccio is not guilty by reason of mental illness of the murder of Elia Coluccio. (2) Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, Vincenzo Coluccio is to be detained at a correctional facility or such other place as may be determined by the Mental Health Review Tribunal from time to time until released by due process of law. (3) The Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders. (4) The Registrar is to notify the Mental Health Review Tribunal and Justice Health and Forensic Mental Health Network of these orders and provide a copy of this judgment and copies of the exhibits relied on in the special hearing including the reports of Professor Greenberg, Dr Martin and Dr Cantali. Catchwords: CRIME – murder – defence of mental illness – judge alone special hearing – relapse of schizoaffective disorder during transition between medications – elderly husband stabs wife of 48 years – inability to conceive of wrongfulness – not guilty by reason of mental illness Legislation Cited: Mental Health (Forensic Provisions) Act 1990 ss 19, 21, 21A, 38, 39 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: R v Coluccio [2020] NSWSC 855 R v M'Naghten (1843) 8 ER 817 R v Pesamino [2002] NSWSC 1188 R v Porter (1933) 55 CLR 182 The Queen v Falconer (1990) 171 CLR 30 Category: Principal judgment Parties: Regina Vincenzo Coluccio Representation: Counsel: Mr J Sfinas (Crown) Mr R Wilson SC (Offender) Solicitors: Solicitor for Public Prosecutions Legal Aid Commission File Number(s): 2019/38710 Judgment 1. HIS HONOUR: On 6 July 2020, I found Mr Vincenzo Coluccio unfit to be tried for the murder of his wife, Ms Elia Coluccio: R v Coluccio [2020] NSWSC 855. I referred him to the Mental Health Review Tribunal and adjourned these proceedings pending the Tribunal's determination. 2. On 11 September 2020, the Tribunal determined that Mr Coluccio was unfit to be tried and would likely remain so for the next year. The Crown was advised of this determination and has elected to proceed against Mr Coluccio per s 19(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"). Accordingly, this matter proceeded to a special hearing. 3. Because he is unfit to be tried, Mr Coluccio was not arraigned and asked to enter a plea; the Act provides that he is taken to have pleaded not guilty: s 21(3)(a). The purpose of this special hearing is to ensure that Mr Coluccio is acquitted unless the charge against him can be proven to the criminal standard: s 19(2) of the Act. Mr Coluccio was ably represented by senior counsel and I am confident that his unfitness was no obstacle to his representation: s 21(2) of the Act. 4. Neither party elected to have the special hearing determined by a jury; accordingly, it proceeded by judge-alone: s 21A of the Act. Background 1. There is no dispute as to what happened in this sad case or about the events leading up to it. I will give a summary of that in a moment but first I wish to convey once again my sympathy to the family and friends of Elia. Her loss was unfathomably tragic. 2. Mr Coluccio is 75 years of age. He came to Australia from Italy when he was 20, and married Elia in 1972. They have three adult children who came to dinner regularly with their partners and their own children. One such family dinner occurred the night before Elia's death. 3. For 22 years, Mr Coluccio ran a successful fruit shop with his brother, Felice (also known as Phil). In 1990, Felice disappeared. He got into a taxi to Cronulla and was never seen again. His licence and jacket were recovered from rocks. Mr Coluccio's mental health declined rapidly after this incident and the fruit shop closed within a few years. 4. In 1994, Mr Coluccio's children noticed him pacing and crying. He attempted suicide and was admitted to Cumberland Hospital where he was diagnosed with paranoid psychosis and psychotic depression. He claimed to hear his brother's voice. 5. In 1995, Mr Coluccio attacked Elia with a knife. He cut her fingers and bit the tip off her nose. The children came to Elia's aid and locked Mr Coluccio in the laundry until emergency services could attend. He was admitted to Cumberland Hospital and received electric shock treatment. While there, he attempted to drown himself. He was then admitted to St John of God Hospital where he was treated by Dr Robin Haig, consultant psychiatrist. 6. Dr Haig prescribed antipsychotic and anti-depressant medication, noting that Stelazine had the most success. Mr Coluccio's mental health stabilised and he continued to see Dr Haig every six weeks for the following years. 7. Dr Haig and Dr Adam Martin, forensic psychiatrist, report that, some six months prior to the offence, Stelazine was withdrawn from the market. Mr Coluccio was moved to a different medication but was still adjusting. He was booked to see Dr Haig on 9 February 2019. Facts 1. On the night of 3 February 2019, the Coluccio family had a celebratory dinner for one of their daughter's birthdays. Everyone appeared to be their usual selves. The following day, however, Mr Coluccio formed the belief that Elia had been unfaithful and that his children were illegitimate. He thought they were mocking him. He also believed that his brother was God and was controlling him. 2. That evening, Elia went to sleep on the lounge after watching television. Mr Coluccio took a kitchen knife that was 19cm long and 23 to 28mm in width. He stabbed Elia through her heart and waited until she went limp. He washed the knife and his hands, then drove to the police station to turn himself in. 3. He made immediate admissions to police. Police attended the home and found Elia underneath a blanket. She was pale and had a weak pulse. Paramedics attended but sadly were unable to revive her. 4. The autopsy indicated that Elia died from the single stab wound through her heart. The wound was 11.5cm deep and 27mm wide, consistent with the knife found in the sink. 5. Mr Coluccio was interviewed. He said he thought Elia and their children were mocking him in regards to the imagined infidelity. He had not talked to or argued with his family about this. He said, "Could be, I am sick. I dunno… Sick in the head." He demonstrated the stabbing motion. He confirmed he wanted to kill her. Mental Illness 1. On the limited evidence available, I am satisfied beyond reasonable doubt that a voluntary and unlawful act by Mr Coluccio caused the death of the deceased. No one else was home at the time and there was no sign of forced entry. He made immediate admissions to police which he later confirmed in interviews. He demonstrated the stabbing motion to detectives. He reiterated his admissions to the psychiatrists who assessed him. The autopsy confirmed that the sole cause of death was the stab wound. The depth and location of the wound suggest an intention of causing very grave harm or death. 2. The question now faced by this Court is whether Mr Coluccio is not guilty of Elia's murder because he was suffering from a mental illness at the time that lead to a defect of reason such that he did not know the nature and quality of the act or that it was morally wrong: R v M'Naghten (1843) 8 ER 718. The onus is upon the defence to prove this on the balance of probabilities: The Queen v Falconer (1990) 171 CLR 30. 3. Dr Cantali, an Italian-speaking psychologist, performed a psychometric assessment of Mr Coluccio on 20 January 2020. She suspected that his cognitive and intellectual functioning was significantly impaired. 4. Dr Martin assessed Mr Coluccio and produced a report dated 3 April 2020. Mr Coluccio expressed a wish to die and reported hearing his brother's voice. Dr Martin opined that Mr Coluccio suffered from treatment-resistant psychotic depression. 5. Professor Greenberg, forensic psychiatrist, reported on 16 May 2020 that Mr Coluccio suffered from a schizoaffective disorder. He expressed a preliminary view that Mr Coluccio might suffer from a neurocognitive disorder resulting in a deterioration of his intellectual functioning through his adulthood. 6. Professor Greenberg was of the view that when he killed Elia, Mr Coluccio was suffering from a relapse of his psychosis manifesting as delusions of jealousy. He knew what he was doing when he took the knife and stabbed Elia. He knew that it was legally wrong because he then turned himself in to police. However, he did not know the act was morally wrong because of his delusions – he could not reason about his actions. 7. In a supplementary report of 3 July 2020, Dr Martin concluded that Mr Coluccio's actions in stabbing Elia were "clearly goal-directed and deliberate". His behaviour in washing the knives and presenting himself to the police suggested that he knew the nature and quality of the stabbing. However, he was unable to appreciate the wrongfulness of his actions given his mental deterioration. The relapse may have been caused by the change in medication in combination with his age. He would have been unable to reason with any composure. In this report, Dr Martin agreed with Professor Greenberg's diagnosis of schizoaffective disorder. 8. Dr Watt, a psychiatrist with the Justice Health and Forensic Mental Health Network (Justice Health), examined Mr Coluccio in custody and reported on 26 August 2020 to assist the Mental Health Review Tribunal. Since his arrest, Mr Coluccio has experienced depression, auditory hallucinations and persecutory delusions. He often hears the voices of Elia and Felice, especially in his dreams. Dr Watt diagnosed Mr Coluccio with chronic schizoaffective disorder with depressive symptoms. Submissions 1. The Crown submitted that it is open to this Court, based on the uncontested medical evidence, to find that Mr Coluccio is not guilty for Elia's death on the grounds of mental illness. 2. The Crown noted that s 38 of the Act compels a "jury" to return a verdict of not guilty by reason of mental illness where there is uncontested evidence that the accused was mentally ill at the time. 3. Senior counsel for Mr Coluccio agreed that the only issue here was whether the special verdict should be returned. He submitted that there was no reason for the Court not to accept the opinions of the psychiatrists. Determination 1. I accept the consensus of Professor Greenberg, Dr Martin and Dr Watt that Mr Coluccio suffers from a schizoaffective disorder. 2. Mr Coluccio appeared to have understood the nature and quality of his actions. He formed an intention to kill and was able to carry out that intention by waiting for Elia to fall asleep, taking up the knife and wilfully stabbing her through the heart. I am also confident that he understood that what he was doing was legally wrong given that shortly afterwards he drove to a police station and confessed. 3. The remaining question, therefore, is whether Mr Coluccio could tell with a moderate degree of sense and composure that what he was doing was wrong by the everyday standards of reasonable people: R v Porter (1933) 55 CLR 182 at 189-190. As it was put by Dixon J summing-up in that case: "It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act." 1. Both Dr Martin and Professor Greenberg were of the view that Mr Coluccio's delusions interfered with his judgment. He could not reason with any degree of sense or composure about the wrongness of his actions. I cannot reject this conclusion in the absence of any evidence to the contrary; there is no conflict to resolve: see R v Pesamino [2020] NSWSC 1188 at [90] (Wilson J). 2. Mr Coluccio was convinced that Elia and their children were making fun of him. They had not talked or argued about this. In fact, the night before, Elia and Mr Coluccio had dinner with their children and grandchildren. Everyone was apparently their usual selves. Elia's death appears to be the consequence of a sudden and tragic relapse during a transition between medications. It is otherwise inexplicable. 3. I find Vincenzo Coluccio not guilty of the murder of Elia Coluccio by reason of mental illness. 4. A number of changes to the law relating to mental health, cognitive impairment and criminal responsibility will soon take effect when the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) comes into force. One of the changes is that the verdict in a case such as this will be expressed in terms of the act in question having been committed but that the person is not criminally responsible because of a mental health or cognitive impairment. That is a different way of saying the same thing. In this case, there is no doubt that Mr Coluccio committed the act that caused the tragic death of his wife, but for the reasons I have given, he is not criminally responsible. 5. I wish to note also that the killing of a spouse or partner out of jealousy is abhorrent. Jealousy, real and imagined, is a troubling undercurrent to many incidents of domestic violence and this verdict should not be taken to suggest otherwise. The issue here is not the wrongfulness of the killing but Mr Coluccio's incapacity to conceive of that wrongfulness arising from his psychosis. Orders 1. I cannot make an order releasing Mr Coluccio from custody unless I am satisfied on the balance of probabilities that he will not seriously endanger any person or member of the public: s 39(2) of the Act. Mr Coluccio concedes that he is a danger to himself, at least, given his suicidal ideation in custody. Dr Martin has opined: "In terms of future management, it would be essential for Mr Coluccio to be accommodated in an appropriate secure therapeutic setting which can monitor his mental state and manage risk of violence to himself and others." 1. Mr Coluccio has been held in the Kevin Waller Unit at Long Bay since July 2019. That is a custodial environment, albeit one designed for elderly inmates. Dr Watt saw him on 20 August 2020. He noted that there had been no significant management problems over the past year. 2. Dr Watt noted that Mr Coluccio's condition was likely to deteriorate in standard prison custody and recommended he be transferred to the Forensic Hospital, a medium-secure unit or an aged care unit with forensic beds. The Mental Health Review Tribunal considered this in September 2020 and supported Dr Watt's view as to more appropriate placement being found. 3. I make the following orders: 1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990, Vincenzo Coluccio is not guilty by reason of mental illness of the murder of Elia Coluccio. 2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, Vincenzo Coluccio is to be detained at a correctional facility or such other place as may be determined by the Mental Health Review Tribunal from time to time until released by due process of law. 3. The Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders. 4. The Registrar is to notify the Mental Health Review Tribunal and Justice Health and Forensic Mental Health Network of these orders and provide a copy of this judgment and copies of the exhibits relied on in the special hearing including the reports of Professor Greenberg, Dr Martin and Dr Cantali. 1. I recommend that the Mental Health Review Tribunal consider the case of Mr Coluccio as soon as practicable in order to consider the possibility of transferring him to a secure therapeutic facility. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2020