Crown v Accused

1 Shea Sturt, you murdered your partner Caitlin O'Brien on 25 June 2019 in the bedroom of the home you shared in Gardenvale. You suffocated and strangled her whilst you were having a cannabis-induced psychotic episode.[1]

2 You handed yourself into police the same day as the killing, confessed to the murder in a recorded police interview and, subsequently, at the first available opportunity, pleaded guilty to that offence, which carries a maximum penalty of life imprisonment.

3 The standard sentence for a mid-range example of the offence of murder, considering only objective factors, is 25 years.

4 In the weeks leading up to the offence, you were smoking highly potent cannabis daily.

5 On 23 June 2019, Ms O'Brien, a registered nurse who worked at the Alfred Hospital, was concerned about your deteriorating mental state. You were having delusions that you were Jesus, that you gave children cancer, that the neighbours worshipped Satan and sacrificed people. Police and paramedics were contacted and came to your home. You were aggressive towards the police, stating 'Don't touch me, you are all rapists'. You were taken to the Alfred Hospital psychiatric unit for treatment. It was noted that you had been smoking cannabis.[2] You were released the same night after which you and Ms O'Brien had the following online conversation.

You said: The only threat I pose to anyone is information ok. I would never hurt you. Just because I'm growing doesn't mean I don't care about you.

She said: I hope so. I get scared.

You said: Of what?

She said: You murdering me.

6 On 24 June 2019, you returned to your shared home.

7 On the morning of 25 June 2019, after spending some time updating your Facebook page, you went into the bedroom where Ms O'Brien was sitting in bed. One of the topics you talked about was the end of the world. During the conversation, you realised Ms O'Brien was worried about the things you were saying.

8 You pulled her pants off to see if you were still physically attracted to her. You held her down on the bed. She struggled and managed to escape your grasp.

9 She ran into the bathroom, grabbed a pair of scissors and came back into the bedroom with the scissors. You overpowered her, taking the scissors from her. You struck her with the scissors several times, causing minor abrasions and bruising to various parts of her body, principally to her upper body.

10 You then pushed her onto the bed. You put a pillow over her face and used your body weight to hold it there for approximately two minutes. When you removed the pillow, Ms O'Brien was not moving. Wanting to ensure that she was dead, you went into the lounge room and grabbed a pair of tracksuit pants. You tied them tightly around Ms O'Brien's neck.

11 You left her on the bed, the pants tied around her neck, and took a shower to wash off her blood. After changing into different clothes, you took Ms O'Brien's bank card from her wallet and placed it on her chest. You then left the apartment, leaving your phone and wallet behind and walked into the city.

12 You spoke to some Protective Service Officers near Flinders Street Station and asked them to arrest you. At their suggestion, you approached some police nearby and told them you had killed your partner. They disbelieved you at first, but police attended your home and found Ms O'Brien dead.

13 In your recorded police interview, which commenced at 11:30pm on 25 June 2019, you spoke many 'wild and whirling words'[3] but you also had periods of lucidity.

14 You told police you had been manic for a couple of days prior to the killing, that movies and music were telling you that you were God and that Ms O'Brien was the Devil.

15 You said you had come to realise Ms O'Brien was a killer and that she had admitted it to you.

16 You said you were talking to Ms O'Brien as the two of you sat on the bed. When asked what you were talking about, you said it was a secret that you had 'divined from the universe' and that the secret would die with you.

17 You said you took her pants off to see if you were still attracted to her but found you were not.

18 After killing Ms O'Brien, you said you placed her credit card on her chest because you had been 'her whore' and it was a symbolic way of saying 'You don't own me anymore'.

19 When told you were going to be charged with murder you said 'Cool'.

20 It is a circumstance of aggravation that your offence was not an isolated instance of domestic violence on your part towards Ms O'Brien, whom you met at TAFE when you were both in your teens. In your recorded police interview, you said this:

And, yeah, I - you know, went through [TAFE], all that sorta thing, had trouble with getting work and that sorta stuff. But after that we started to have, like, just serious relationship problems and, like, infidelity and that sort of stuff, and I became physically aggressive, physically violent, sexually violent. And I couldn't - I couldn't really deal with all ... those feelings at the time, until quite recently where I was admitted to the Alfred Hospital and had to sort of for the first time explain to someone everything, like, you know, bad about me and that sorta thing.

21 In March 2017, when you were taken to the Alfred Hospital after walking in traffic, Ms O'Brien told hospital staff that you had been violent towards her for seven of the ten years of your relationship.[4]

22 Between September and November 2018, you had three admissions to the Alfred Hospital psychiatric unit, on which occasions Ms O'Brien reported that your mental state had deteriorated in the context of substance abuse and that you had been physically violent towards her, or had threatened to harm her. The violence included trying to strangle her in her sleep. Your counsel did not concede the reliability of Ms O'Brien's reports of violence in 2018, but in light of your offence, your admissions in your recorded police interview and the contents of the report of forensic psychiatrist Professor Andrew Carroll, I see no reason to doubt them.

23 I note that you have one prior finding of guilt. It was for an assault of Ms O'Brien. On 6 September 2010, you were placed on a 12-month undertaking to be of good behaviour in relation to that offence.

24 But I should make the following two points in order to put your domestic violence in a proper perspective.

25 First, medical records from 2 November 2018 include the following:

[Ms O'Brien] states that Shae used to be physically aggressive, especially when they fought. She states that three years ago, Shae made the decision to change his behaviour, he became fit and motivated, focused and at this time, his physical violence stopped. She states that things have been a lot better...

26 Second, I accept the following statements of Professor Carroll who assessed you at the request of your lawyers:

Throughout most of the relationship until the final few years, he appears to have used various coercive behaviours including violence, threats of violence and threats of suicide, in order to mitigate what he evidently perceived as the persistent likelihood of Caitlin abandoning him.

...

The fatal attack on Caitlin O'Brien occurred when he was in an acutely psychotic state; it appears to have been motivated by several compelling beliefs, all of which were delusional in nature. These included beliefs that killing her was the morally right thing to do in order to save humanity and also to avoid himself being killed.

I could find no evidence whatsoever that the fatal attack on Caitlin O'Brien was motivated by the same factors that had caused him to become violent on a repeated basis earlier on in their relationship.

...

Notwithstanding the prior history of domestic violence, in my opinion, in the absence of the psychotic episode, the killing of Caitlin O'Brien would not have occurred. His psychotic episode was a necessary and sufficient cause.[5]

Whether voluntary drug taking an aggravating circumstance

27 The prosecution submitted that your voluntary drug taking was an aggravating feature of your offence. For that to be the case, I would need to be satisfied beyond reasonable doubt that you knew that it was a likely consequence of your cannabis use that you would become violently psychotic.[6]

28 To try and establish the necessary inference, the prosecution relied heavily on your above average intelligence[7] and your three admissions to the Alfred Hospital psychiatric unit between September and November 2018.[8] As mentioned, each hospital admission occurred in the context of substance abuse, but the first two admissions were in the context of cannabis and LSD use. The third hospital admission, however, was in the context of cannabis use alone and you were admitted after trying to strangle Ms O'Brien in her sleep. I accept that this evidence strongly supports the inference that when you resumed cannabis use in March 2019[9] you knew you might become violently psychotic from cannabis use, but does it establish more than that? You told Professor Carroll that you used cannabis to make yourself calmer and thought at the time that 'smoking weed was like a cure all'.[10] You also told Professor Carroll that you resumed daily cannabis use in March 2019 and that 'It made me treat Cait better, I'd be less aggressive, more lovey-dovey with more empathy'.[11] Given that perspective and the fact that you spent several months using cannabis daily without a hospital admission, your appreciation of the magnitude of the risk you were taking may have been clouded.

29 It is true that you told Professor Carroll that when regularly using cannabis, 'I'd build up such a tolerance or I'd have a psychotic reaction, getting aggressive, especially if I had too much caffeine'[12]. But what you meant by 'aggressive' is unclear. It is also unclear whether your comment was hindsight, or reflected your awareness at the relevant time.

30 In all the circumstances, I am not satisfied beyond reasonable doubt that you knew you were likely to become violently psychotic from your cannabis use during the relevant period. Accordingly, I do not accept the prosecution's submission that your cannabis use is an aggravating feature of your offence.

Whether Schizotypal Personality Disorder a mitigating circumstance

31 I need to say a little more about your mental health issues.

32 It was appropriately conceded by your counsel that the first principle of Verdins[13] had no application in your case.[14] In other words, your moral culpability was not reduced by your psychosis at the time of the offence because you voluntarily took the cannabis that caused the psychosis, knowing the cannabis might make you violently psychotic.[15]

33 But your counsel submitted your mental health issues bore on your moral culpability in another way.

34 Professor Carroll diagnosed you with a 'Schizotypal Personality Disorder', defined in DSM‑5 as follows:

A pervasive pattern of social and interpersonal deficits marked by acute discomfort with, and reduced capacity for, close relationships as well as by cognitive or perceptual distortions and eccentricities of behaviour, beginning by early adulthood and present in a variety of contexts ...

35 Professor Carroll opined that this is a permanent condition and one which you have had since adolescence.[16]

[Your] profound problems with 'negative affectivity' (anxiousness, depressivity, separation insecurity) are most parsimoniously considered as secondary features, arising from [your] underlying schizotypal personality disorder. Such a pattern is common amongst persons with schizotypal features, who often struggle to 'fit in' to the wider society.[17]

37 Professor Carroll also opined that your Schizotypal Personality Disorder contributed indirectly to your offending in the following two ways:

• the associated problems with social anxiety and proneness to depressivity predisposed him to the heavy usage of cannabis, which he found improved his mood and calmed his anxiety, at least in the short term; and
• it lowered the threshold for the development of psychosis following ingestion of psychotogenic substances.[18]

38 Your counsel submitted that your personality disorder was a mitigating circumstance. The reasoning, simply stated, was as follows: you offended because you were psychotic; you were psychotic because you used cannabis; you used cannabis because you were anxious; you were anxious because you had Schizotypal Personality Disorder; it was not your fault that you had Schizotypal Personality Disorder. Thus, it was submitted that your moral culpability was reduced.

39 But using cannabis was not the only way in which you could have tackled your anxiety. You could have asked your GP for assistance in that regard. You had the capacity to go without cannabis for extended periods: you told Professor Carroll that you would use cannabis 'three months on, three months off'.[19] Further, you could and should have undertaken a drug rehabilitation program. But most importantly, you were aware that cannabis might cause you to become violently psychotic.

40 In summary, I do not consider that your freedom of choice in relation to cannabis use was so circumscribed by your Schizotypal Personality Disorder as to elevate that disorder to a circumstance of mitigation.

41 Ms O'Brien was only 31 when you cut short her life.

42 I received very moving victim impact statements from Ms O'Brien's mother, father, and sister. They have all suffered greatly as a result of your crime, and that suffering continues. Her mother writes: 'We will never get over this'. Her father writes: 'You really can't understand the distress, loss, agony, disbelief unless you experience it'. Ms O'Brien's sister writes: 'One of the hardest things has been to face how heartbroken Mum and Dad are'.

43 No sentence I impose can undo the harm you have done.

44 A final point regarding the victim impact statements. All her family emphasise how much Ms O'Brien loved nursing and helping others at Caulfield Hospital and then the Alfred Hospital. Her family rightly take great pride in Ms O'Brien's achievements and contribution to our community.

45 Let me summarise what I consider are the aggravating circumstances of your offence.

46 Your victim, who was still a relatively young woman, was your long-term intimate partner.

47 You murdered her in her own home, a place where she should have been safe.

48 It was not a one-off instance of domestic violence on your part.

49 All murders are offences of the utmost seriousness because they involve the taking of human life. But with murder, as with every other offence, there is a spectrum of seriousness. I am obliged[20] to consider where your offence falls on that spectrum.

50 Even though your murder is an instance of domestic violence, and not an isolated instance, I reject the prosecution's submission that yours is a high-end example of the offence of murder. As Professor Carroll has pointed out, your fatal conduct was not motivated by the same considerations which led to your domestic violence earlier in your relationship with Ms O'Brien. And your offence was not at all planned. I view yours as a mid-range example of the offence of murder.

51 I turn now to your personal circumstances. You were born on 21 October 1986 and at the time of your offending were 32 years old. You are now 33.

52 In your recorded police interview, you described your childhood as 'troubled'.

53 You never knew your biological father. Your mother re-partnered when you were very young and you grew up in a blended household with two older step siblings with whom you no longer have any contact.

54 You say your stepfather was physically and emotionally abusive towards your mother. You told Professor Carroll that your mother, who visits you in prison, has had her own struggles with mental illness[21] and substance abuse.

55 You were bright at school, but it appears that increasing anxiety affected your performance. You completed VCE at a TAFE.

56 Since finishing TAFE, you have had very little paid employment. Your longest job lasted several months at an IT service store. Your last job was in 2017.

57 You have used cannabis regularly since your teens.

58 You have dabbled with other drugs, including MDMA, hallucinogenic mushrooms and LSD.

59 I was told that you have declined illicit substances whilst in custody.

60 Your only longstanding intimate relationship was with Ms O'Brien.

61 You were about 18 and she was about 17 when you met at TAFE. You lived together as a couple for many years.

62 She worked as a nurse. You were mostly unemployed. She supported you financially.

63 She suffered from migraines and, in 2019, underwent brain surgery to remove a benign cyst. She was still recuperating from that operation when you ended her life.

64 I accept that you are remorseful for causing Ms O'Brien's death and not just because of your expressions of remorse to Professor Carroll. Significantly, you handed yourself in on the day you killed Ms O'Brien and made a full confession and pleaded guilty at the earliest available opportunity.

65 Given your long history of cannabis use, and in circumstances where you were aware you might become violently psychotic, I cannot share Professor Carroll's view that your prospects of rehabilitation are 'very good' but having regard to your limited criminal history, your remorse, your current excellent insight regarding your psychological issues and your positive response to, and acceptance of, medication whilst in custody (aripiprazole 15 mg), I consider that your prospects of rehabilitation are reasonable. I note that Professor Carroll states 'There is nothing to suggest that [you] will relapse again into psychosis unless [you] choose to use cannabis or other psychotogenic substances in the future'.

66 Let me summarise what I consider are the mitigating circumstances in your case.

67 You promptly surrendered yourself to police and made a full confession.

68 You cooperated with the prosecution, pleading guilty at the earliest available opportunity.[22]

70 You have reasonable prospects of rehabilitation.

74 But for your plea of guilty, I would have sentenced you to 25 years' imprisonment with a non-parole period of 19 years.

75 I declare that you have served 351 days by way of pre-sentence detention.

76 As mentioned above, the standard sentence of imprisonment for a mid-range example of the offence of murder, having regard only to objective circumstances, is 25 years. The subjective, mitigating circumstances mentioned above are the reason I have arrived at a head sentence of 22 years and a non-parole period of 16 years.

[1] According to forensic psychiatrist Professor Andrew Carroll, at the time you killed Ms O'Brien, '[You were] not able to reason with a moderate degree of sense and composure about whether [your] conduct as perceived by reasonable people was wrong. [You were] severely psychotic and ... in the grip of various delusional beliefs; in [your] mind [those] beliefs not only justified, but morally compelled, the killing of [Ms O'Brien].' Psychiatric report of Professor Andrew Carroll (20 March 2020) 28 [242].

[2] Psychiatric report of Professor Andrew Carroll (20 March 2020) 17 [167].

[4] Psychiatric report of Professor Andrew Carroll (20 March 2020) 7 [73].

[5] Psychiatric report of Professor Andrew Carroll (20 March 2020) 26 [226], 27 [235]-[236], 29 [254].

[6] See, eg, R v Martin (2007) 20 VR 14, [2007] VSCA 291, [53]; Dosen v R [2012] VSCA 307, [18].

[7] Psychiatric report of Professor Andrew Carroll (20 March 2020) 25 [222].

[8] The first two admissions were 23 to 30 September 2018 (Psychiatric report of Professor Andrew Carroll (20 March 2020) 8-9 [81]-[83]) and 8 to 12 October 2018 (Psychiatric report of Professor Andrew Carroll (20 March 2020) 9 [86]-[88]). The third admission commenced on 21 October 2018 (Psychiatric report of Professor Andrew Carroll (20 March 2020) 9 [91]): Professor Carroll does not say when it concluded.

[9] Psychiatric report of Professor Andrew Carroll (20 March 2020) 16 [153].

[10] Psychiatric report of Professor Andrew Carroll (20 March 2020) 4 [37].

[11] Psychiatric report of Professor Andrew Carroll (20 March 2020) 16 [151].

[12] Psychiatric report of Professor Andrew Carroll (20 March 2020) 12 [113].

[13] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[14] Transcript of Proceedings, DPP v Sturt (Supreme Court of Victoria, S ECR 2020 0037, Beale J, 4 May 2020) 33, 37.

[15] R v Arvanitidis [2008] VSCA 189, [34].

[16] Psychiatric report of Professor Andrew Carroll (20 March 2020) 28 [245].

[17] Psychiatric report of Professor Andrew Carroll (20 March 2020) 25 [219].

[18] Psychiatric report of Professor Andrew Carroll (20 March 2020) 29 [255].

[19] Psychiatric report of Professor Andrew Carroll (20 March 2020) 8 [79].

[20] R v Kilic [2016] HCA 48; [2016] 259 CLR 256, 266 [19]; Brown v R [2019] VSCA 286, [37], [55].

[21] Psychiatric report of Professor Andrew Carroll (20 March 2020) 12 [119].

[22] Transcript of Proceedings, DPP v Sturt (Supreme Court of Victoria, S ECR 2020 0037, Beale J, 4 May 2020) 13.