Director of Public Prosecutions v AB (No 2) [2014] NSWSC 1038

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v AB (No 2) [2014] NSWSC 1038 Hearing dates: 8, 10 - 11, 13, 15 - 18 October 2013, 26 November 2013, 13 June 2014 Decision date: 07 August 2014 Jurisdiction: Common Law Before: Adams J Decision: A limiting term of 7 years is nominated, commencing on 10 July 2010. Pursuant to s 24 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant is referred to the Mental Health Review Tribunal. Catchwords: CRIMINAL LAW - imposition of limiting term - found guilty on the limited available evidence - effect of mental condition - refer to Mental Health Tribunal Legislation Cited: Crimes Act 1900 (NSW), ss 23, 23A, 24 Mental Health (Forensic Provisions) Act 1990 (NSW), ss 21(3)(a), 23(1)(b) Cases Cited: Director of Public Prosecutions v AB [2013] NSWSC 1739 Category: Principal judgment Parties: Director of Public Prosecutions AB Representation: Counsel: J Crespo (DPP) M C Ramage QC (Defendant) Solicitors: Solicitor for Director of Public Prosecutions (DPP) Jeffreys Lawyers (Defendant) File Number(s): 2010/00230612

Judgment Introduction 1On 8 October 2013 the defendant was arraigned upon a charge that he, on 10 July 2010 at Wingham in the State of New South Wales murdered the deceased. He was not fit to be tried because of his mental condition and, accordingly, it was necessary to conduct a special hearing under the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW), pursuant to s 21(3)(a) of which he was taken to have pleaded not guilty to the indictment. The special hearing was conducted without a jury. On 26 November 2013 the Court found that, on the limited evidence available, the defendant was not guilty of murder but guilty of manslaughter. 2The maximum term of imprisonment for the offence of manslaughter is 25 years: s 24 of the Crimes Act 1900 (NSW). Section 23(1)(b) of the Mental Health (Forensic Provisions) Act 1990 requires the Court to nominate a term which is - "... the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence." 3The purpose of this law is to ensure that a person who is not fit to be tried is not punished more harshly than would have been the case had he or she been convicted in the ordinary way. Previously, a person in this situation would often be held in prison for a much longer period than would have been the case had they been fit and tried in the ordinary way. Accordingly, many persons who were not fit for trial would not raise the matter for fear of suffering what would have been in effect a far harsher penalty than if they simply went to trial, even though because of their mental condition they were not really able to properly defend themselves. The Court is now required to nominate a "limiting term", to obviate this injustice, although this is only a partial amelioration since there is no power to specify a non-parole period, which will usually (if not invariably) permit release after 75 per cent, sometimes much less, of a conventional sentence is served. Facts 4The facts of the case are sufficiently set out in the Court's previous judgment (Director of Public Prosecutions v AB [2013] NSWSC 1739) and, aside from some matters, need not be repeated here. In brief, the defendant armed himself with a rifle and went to the deceased's home where he shot her five times, with one round penetrating the heart. The killing occurred at about 3.30pm on the veranda. He made no effort to conceal his actions, which were seen as it happened by several neighbours. After briefly waiting, he left the premises in his car to return home (about 25 kilometres away), at which time he telephoned "000" several times, telling the operator what he had done and why it was justified. In substance, he was upset and angered by the fact that the deceased had formed a relationship with a neighbour, had left him together with their daughter and was making a claim for maintenance and a share of the home. (In fairness, I should point out, in looking at the conduct of the deceased from the defendant's point of view, I do not suggest in any way that, in fact, she had acted wrongly, improperly or, for that matter unfairly towards him.) 5The defendant returned to the scene about two hours after the shooting and made a half-hearted attempt to flee when he saw police there. His vehicle was stopped shortly after and he was arrested. Although he had been drinking - indeed at least one officer thought he was at least moderately affected by alcohol - I was satisfied from the medical evidence that the slurring of his words (still evident many hours later, when he was undoubtedly sober) was in fact a symptom of a minor stroke, and that he was not significantly intoxicated. He made full and frank admissions to the police. Although he said, in effect, that he had no choice but to kill the deceased because of her conduct towards him, he also expressed guilt and remorse. 6The principal issues in the trial were whether the defendant had acted under provocation within the meaning of s 23 of the Crimes Act or, if this were not so, whether he was suffering from a substantial impairment within the meaning of s 23A of the Crimes Act which warranted his liability for murder being reduced to manslaughter. I found that, although it was likely that the defendant's shooting of the deceased was a reaction to her conduct, he had not lost his self-control. Accordingly, the provocation defence was not available. I concluded, however, that he was not guilty of murder but guilty of manslaughter because, although he intended to kill the deceased, the medical evidence persuaded me that his powers of reason and judgment and the capacity to control himself were substantially impaired by an abnormality of mind arising from an underlying condition, in substance, dementia, brain damage and depression, which warranted the finding of manslaughter rather than murder. The defendant's mental state 7Were it not for the defendant's mental condition at the time of the offence, this would have been a very serious case of murder. Although I discussed the medical evidence extensively in my judgment on the special hearing, I should repeat some of the salient matters here, given its relevance to setting the limiting term. 8The medical history commences with the defendant's admission to the Emergency department of Wilcannia Hospital in May 2004 following his involvement in a motor vehicle accident. He was observed to have a bruise on his right temporal lobe and a scratch in his right parietal region with various symptoms suggestive of some brain injury, although a brain scan showed no abnormalities. He was transferred to Broken Hill Base Hospital for observation but discharged himself two days later despite some continuing symptoms of confusion and memory loss. Apart from any possible brain injury, his doctor reported his history as including hypertension, ischemic heart disease, diabetes, chronic anxiety and alcohol excess. 9The next information comes from the defendant's consulting general practitioner in Taree who saw him in August 2007 and referred him to a psychologist in November 2008, essentially because of depression possibly caused by chronic back pain from an old work injury. The defendant did not go to the psychologist until mid 2010 following a second referral. A mental health assessment showed he was significantly depressed although he had been taking anti-depressant medication for five months or so. The medication was increased with some improvement. In June 2010 the psychologist thought he was suffering from anxiety and depression and was "in a very poor state". 10After the defendant went into custody, he underwent an MRI brain scan on 9 November 2011, which demonstrated a history of minor strokes and resulting frontal lobe damage. Psychometric testing was made difficult because of the defendant's varying levels of co-operation, although it was being done at the request of his own lawyers. This meant that the results, though suggestive of significant problems, were of questionable validity and inconclusive. 11Four psychiatrists were called at the special hearing. I have discussed their evidence in detail in the principal judgment and do not intend to repeat it here. Their opinions did not substantially differ. Dr Reutens diagnosed an Adjustment Disorder with Depressed Mood and cognitive impairments in a number of domains such as memory, language and executive functioning which are consistent with a diagnosis of dementia. The cause of the dementia was likely to have been contributed to by long term hazardous alcohol intake, cerebrovascular disease as demonstrated on his brain MRI, and possible Alzheimer's dementia. 12Professor Greenberg concluded that, at the time of the offence, the defendant likely had small vessel disease of his brain in the frontal area with resultant old infarct areas of his brain, adjustment disorder with depressed mood, chronic alcoholism, possible cannabis usage and long term effects of Valium medication and early or emerging dementia. 13Dr Neilssen reported on the defendant's problems with attention, concentration and the orderly retrieval of information, as well as his becoming irritated, venting his anger, and becoming upset in response to obvious difficulties he had in performing screening tests of memory and concentration. He expressed the opinion that the defendant had depression and intellectual function impairment at the time of the offence arising from his underlying conditions including changes in brain structure and function associated with emerging dementia. He thought the defendant's combination of disorders were likely to have had a significant effect on his perception of events, his ability to judge whether his actions were right or wrong and on his ability to control his actions. (Although the doctor added the possible effects of intoxication, I am satisfied - as mentioned above - that the defendant was not intoxicated at the time). 14Dr Allnutt concluded that the defendant suffered from Vascular Dementia with Alzheimer's subtype as a differential diagnosis. Given his present symptoms, Dr Allnutt thought it reasonable to conclude that, at the time of the offence, the defendant was manifesting early signs of Mild (as distinct from moderate or severe, not "normal") Vascular Neurocognitive Disorder and that the erosion of his cognitive facilities was already occurring, although he accepted that this was a difficult determination to make in retrospect. Mild Vascular Neurocognitive Disorder can manifest in the form of executive dysfunction and poor social judgment characterised by disinhibition, a reduced capacity for personal restraint and inappropriate social behaviour, making it difficult to organise and plan, and so increasing his reliance on the victim and adding to feelings of loss and anger when she left him, together with the multiple losses he experienced leading up to the offence including the belief that the deceased was having an affair. All this contributed to severe depressive symptoms which appeared to have been active at the material time. Depression tends to aggravate the negative perception of one's self, others and one's environment and can compound underlying feelings of irritability and anger and generate aggression. 15The defendant's mental condition has been the subject of continuing examination, since he is under the supervision of the Mental Health Review Tribunal. He was reviewed on 4 February 2014 by Dr Reutens who noted signs of continuing irreversible and increasing dementia and predicted an ongoing decline in cognitive function. His depression had worsened, with antidepressant medication unlikely to bring about significant improvement. He was physically frail and in a wheelchair. Dr Welkee Sim, a consultant physician and geriatrician has been treating the defendant since January 2014. He had been admitted as an inpatient in the Aged Care and Rehabilitation Unit of the Long Bay Hospital, which is a unit to assess cognitive and physical health of elderly inmates. He was still there as at the end of April, when Dr Sim prepared his report. Amongst his other physical problems, the defendant fell in November 2013 while attending a medical appointment at the Prince of Wales hospital and sustained a right hip fracture which required surgery. He suffers from continuing severe pain from this injury and may require further surgery. The defendant could walk with the aid of a 4 wheel walker. He needs strong analgesic medication. 16The defendant has little insight into his illness symptomatology, although he is aware that his memory "isn't good". At present, he can self care (shower, shave and dress) but cannot manage his financial affairs and needs supervision with his medication. In short, the defendant has increasing dementia with severe physical problems which will not improve. He cannot live independently. Objective seriousness 17The most serious feature of the defendant's actions, of course, is his killing of the deceased in circumstances which, but for his mental state at the time, would have constituted the crime of murder. There can be no doubt that, despite the damage to his powers of reason, self control and judgment he was well aware of the criminality of his actions. Accordingly, there is a significant degree of moral turpitude and criminal culpability involved for which it would have been just that, had he been convicted after trial, a substantial term of imprisonment should have been imposed. Subjective features 18The defendant has a relatively slight and irrelevant criminal record. He was nearly 65 years old at the date of the offence and is now almost 69 years of age. It hardly needs stating that his understanding of what he has done and the nature of these proceedings is significantly impaired and will continue to worsen. Some letters dating from 2011 and 2012 to a member of the deceased's family were tendered on sentence. They show a degree of indifference to the seriousness of what he did and express a continuing sense of bitterness and justification. Since the nature of his relationship with the recipient is unknown, it is difficult to assess their true significance. Certainly they do not express any remorse, but his lack of insight is not surprising and has certainly worsened in the ensuing years. 19It is relevant to consider that the defendant will find the prison environment considerably more difficult to cope with than the ordinary prisoner. I note also Dr Reutens' evidence that the average life expectancy from first diagnosis of dementia is of the order of 10 years but less where hypertension is present (as here). In one study of 477 persons, 70 per cent had died after 5 years. 20It is clear that the defendant's mental condition, both as it contributed to the offence, and at present, makes him an inappropriate vehicle for general deterrence. I am satisfied that he will not again commit an act of dangerous violence. 21I should mention that the defendant's niece has offered to accommodate the defendant in the event of his release. Conclusion 22A limiting term that is likely to end after an offender's understanding of where he or she is and why serves no useful public purpose and is, therefore, pointless. 23In my view the appropriate limiting term is 7 years, commencing on 10 July 2010. Pursuant to s 24 of the Mental Health (Forensic Provisions) Act, the defendant is referred to the Mental Health Review Tribunal.