REGINA v DERBIN [2000] NSWCCA 361

New South Wales Court of Criminal Appeal

CITATION : REGINA v DERBIN [2000] NSWCCA 361 FILE NUMBER(S) : CCA 60725/98 HEARING DATE(S) : 29 August 2000 JUDGMENT DATE : 12 September 2000

PARTIES : REGINA v Peter DERBIN JUDGMENT OF : Mason P at 1; Levine J at 78; Greg James J at 79

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70090/97 LOWER COURT JUDICIAL Ireland J OFFICER :

COUNSEL : Crown: L M B Lamprati Appellant: J C Nicholson SC SOLICITORS : Crown: S E O'Connor Appellant: D J Humphreys CATCHWORDS : Suffocating with intent to murder - maliciously inflicting grievous bodily harm - mental illness defence - underlying schizophrenic condition affected by alcohol and drugs - extent to which appellant's mental illness affected his capacity to reason - appellant did not know that what he did was wrong - Criminal Appeal Act 1912 s7(4) - ND. DECISION : See par 77

IN THE COURT OF CRIMINAL APPEAL CCA 60725/98

MASON P LEVINE J GREG JAMES J

Tuesday 12 September 2000

REGINA v Peter DERBIN

JUDGMENT 1 MASON P: The appellant was indicted in the Supreme Court and tried before Ireland J and a jury. He was found guilty on charges of attempting to suffocate Maisie Derbin with intent to murder her and maliciously inflicting grievous bodily harm upon Maisie Derbin with intent to do so. Maisie Derbin is the appellant's mother. 2 There was little dispute as to the primary facts giving rise to the two related charges. The evidence of most witnesses was read from their statements. The only contested issue was the defence of mental illness. 3 The appellant lived with his mother and her father. At the time of the offences, 16 August 1997, the appellant was aged about 22 and his mother was 55. 4 The account of the facts given by Ireland J in his remarks on sentence was as follows: At about 5.30pm on Saturday 16 August 1997 the victim, Maisie Derbin, who was then aged 55 years, returned from her regular employment in a retail department store at Warringah Mall, Brookvale, to her father's home at 65 Gondola Road, Narrabeen, where she resided with her father and son the prisoner. At about 6.30pm the prisoner arrived home from his employment as a storeman at a supermarket located at Warriewood Square, Mona Vale. The prisoner's grandfather arrived home at about 7.30pm. The prisoner left the house and purchased fish and chips for the family's evening meal. At about 8.30pm the prisoner retired to his bedroom and began listening to taped music by the group known as "Metallica". About 9.30pm the volume of the music was increased by the prisoner to the extent that his mother requested him to reduce it, as his grandfather was about to retire to bed. Mrs Derbin tried to turn down the volume, but was restrained by the prisoner, who pushed her away. She fell onto the prisoner's bed and was slapped a number of times by the prisoner with an open hand. Mrs Derbin also slapped the prisoner a couple of times before returning to her bedroom. The prisoner's grandfather twice requested the prisoner to turn down the music, which was playing at very high volume, which the prisoner finally did. The prisoner's mother returned to her bedroom. Some ten to fifteen minutes later, the prisoner entered his mother's bedroom where she was lying on her bed watching television. She described the events which followed in this way: Peter rushed me from the doorway. The first thing I felt was Peter's fist punching me in the face. He punched me a number of times. Peter stuck his fingers down my throat and tried to choke me. Peter was swearing at me through the entire attack. He said things like "you bitch, you whore" and so on. I must have fallen off my bed. I remember hitting the floor. I tried to get away from Peter but he continued attacking me and punching me around the head. I remember calling out for help and calling for my father. He obviously couldn't hear me. I was saying to Peter "I'm your mother, please don't hurt me. Stop hitting me. Don't kill me.". Peter had his fingers in my eyes, he was pulling at them, he was gouging at them whilst I was trying to crawl away on the floor. He was sticking his fingers right in behind my eyes. Everything was black. I remember feeling extreme pain in my eyes whilst he was gouging at them. I was pleading with him to stop and not to kill me. I kept repeating that over and over again. The next thing I remember is still being on the floor. I felt what seemed to be a pillow over my face. It was soft. Peter was pushing down on the pillow over my face. I don't recall hearing Peter say anything. I couldn't breathe. The pillow was suffocating me. That's when I passed out. During the entire attack I was petrified. I have no doubt Peter was trying to kill me. I thought he was going to kill me. I was pleading with Peter to stop. In the course of the assault one of the victim's eyeballs was completely removed, and the other was displaced from the eye socket to the extent that it was no longer viable and required surgical removal. The force employed in the attempted suffocation of the victim was such that a number of her natural teeth were knocked out and her denture was broken. In his video taped record of interview with investigating police officers the prisoner frankly admitted the offences and gave a version of the offences not dissimilar to that given by his mother. … In his record of interview, the prisoner described the music he had been listening to as either a recording known as "No Remorse" or alternatively "Seek and Destroy". He described being influenced by reading a comic-style magazine called "Heavy Metal" in which is depicted the gouging out of one individual's eyes by another. The prisoner in his record of interview mentioned on a number of occasions hearing "voices" in the sense of being from time to time influenced by them in his conduct, however, he did not describe his conduct on the night of the offences to any hallucinatory commands. He describes his relationship with his mother as "normal, pretty close" (A/A 132) and said that he had formed the intention to kill her "… about five minutes before, if that, two or three minutes". Prior to August 1997, the prisoner had received psychiatric treatment at Manly Hospital. The prescription drug "Anatensol" had been prescribed and used by the prisoner prior to the offences being committed, but he had not taken the medication in the recent past prior to the events of 16 August. Following the assaults upon the victim, the prisoner gave an account of going to the refrigerator, obtaining orange juice which he drank and then of getting the keys of the car and silently, lest his grandfather should hear him, opening the door of the car. He decided that he would more easily be found by authorities if he were in a car, so he threw the keys into the bush. He also considered use of the car for the disposal of the body of the victim, whom he thought, at that time, to be dead. After spending sometime sitting in a nearby park, the prisoner walked from Narrabeen to St Ives, caught a taxi to Chatswood and went by train to Central Railway Station. After spending two days in the vicinity of Central Railway, the prisoner caught the train intending to go to Brisbane. He left the train at Gosford and returned to Sydney and thereafter travelled to the Newcastle area where he was arrested on 10 September 1997. He described his movements as "… game of cat and mouse" played by him with police. 5 Leaving aside some relatively formal evidence given by two police officers, the only witnesses to give evidence before the jury were two consultant psychiatrists, Dr Olav Nielssen called in the defence case and Dr Yvonne Skinner called in reply for the Crown. The two doctors had examined the appellant after his arrest. They had access to documents relating to his prior psychiatric history and had read the transcript of the appellant's electronically recorded interview (ERISP) conducted on 10 September 1997. Dr Skinner had also viewed the video tape of that interview. 6 The two doctors were agreed that the appellant had suffered schizophrenia since about 1995. They accepted that the assault on the appellant's mother was a consequence of that mental illness, albeit triggered on the night in question by a lethal cocktail of alcohol, cannabis and butane fume ingestion. Based upon the ERISP, the doctors were agreed that the appellant knew the nature and quality of what he was doing when he carried out the terrible assault upon his mother. However, each expert was also of the view that the appellant did not at the time know that what he was doing was wrong. Each doctor said in terms that he/she was of the opinion that the defence of mental illness according to the M'Naghten rules was made out. 7 The jury nevertheless rejected the defence of mental illness and convicted the appellant. 8 The notice of appeal raised two grounds of appeal: 1. The verdict is unreasonable having regard to the evidence.