DPP v Bruno [2018] VSC 822

2 The immediate circumstances which led to the charge before the Court was that your father came to your bedroom at some time after 7.30 pm on 20 June 2017 as he needed you to sign insurance documents.

3 When he first went to your room, he got no response. After waiting for you to finish showering, he again came to your room. He knocked before entering. You were on the bed under the blankets, facing the wall. You made no response to your father's question about signing the insurance documents. Your father tapped you on the shoulder to see if you were awake and told you that he was not asking for much, just that you sign the forms.

4 You slowly lifted the blanket and sat up in bed. You had a knife in your right hand and you lunged towards your father and stabbed him in the left side.

5 At about that time, your mother, Feliciana, who was in the living room, heard you say, 'I kill you.' She came to your bedroom immediately.

6 After being stabbed, your father grabbed your right hand and forced your hand down as the two of you wrestled. You fell on the floor. Your mother was shouting at you to let go off the knife and when you did not, she grabbed you around the neck and attempted to pull you off your father. Your father twisted your arm and you let go of the knife. Your mother picked it up and ran out of the room to hide it.

7 Because your father was afraid of you, he told you to leave. Your mother by then had rung 000. You remained sitting on the bed and when the police arrived, they took you outside. An ambulance arrived and your father was ultimately taken to The Alfred Hospital by Air Ambulance.

8 He suffered a number of series injuries to the intestines and other organs were damaged by the stab wound. Those injuries necessitated the removal of 8 centimetres of his bowel and the need for the insertion of a stent into his renal urethra.

9 The next day, further treatment was necessary to stem the bleeding. The injuries that I have set out above were life threatening and required surgical intervention.

10 Your father spent about three days in intensive care and another nine days in hospital. He was discharged on 1 August 2017.

(a) a through and through laceration of the small intestine,

(b) a three centimetre kidney laceration, and

(c) a laceration of the mesentery of the large intestine.

12 You were arrested at the house and taken to the Bacchus Marsh Police Station for interview. In the prosecution opening on the plea, the following matters, which you told the police, are set out, in the past tense.

1. That he got into an argument with his Dad and then he stabbed him with a knife that he keeps in his room for cooking.
2. That he stabbed him because he felt that he was pushed too far.
3. He just snapped and grabbed the knife and stabbed him.
4. That he had the knife with him in bed in case something happened.
5. He thought that if his dad was going to keep pushing him then he would kill him.
6. That he had the knife to intentionally kill his father
7. That he warned him about two years ago if he kept pushing him he was going to kill him.
8. That after the initial strike with the knife he wanted to stab him again, but his father overpowered him.

1. That he was going to kill his father and he wanted him to die.[1]

13 From the chronology of events set out in the opening, the following matters occurred. On 8 March 2018 you accepted the hand-up brief, pleaded guilty to this charge, and were committed to stand trial in this Court. You were not represented and your defence team had earlier been attempting to have you assessed for fitness to plead and the possibility of the defence of mental impairment.

14 When you first appeared in this Court on 15 March 2018 for a post-committal directions hearing, the Court ordered a report about your fitness to plead. The Court was provided with a report from Dr Maria Trilia. dated 3 May 2018. Although Dr Trilia was of the opinion that you were fit to stand trial, she thought you were suffering from a psychiatric - likely a psychotic illness - and she referred your case to Forensicare, but nothing seems to have come from that referral.

15 You were subsequently examined by Associate Professor Andrew Carroll. Associate Professor Carroll saw you on 17 July 2018 and prepared a report dated 3 August of the same year, which was tendered on the plea. Prior to the preparation of the report he also spoke to your parents, as had Dr Trilia.

16 Associate Professor Carroll gave evidence before me which I found to be very helpful.

17 You are now 42 years of age and have no prior convictions. You have no formal psychiatric history, although you have been involved in some incidents which might indicate that you have had some underlying psychiatric difficulties for some time.

18 Associate Professor Carroll provided a detailed report, which was largely directed towards the question of your fitness to stand trial, and it was his opinion that you are fit to stand trial.

19 Shortly after the provision of his report, the matter was resolved on a plea of guilty. In my view the psychiatric investigations carried out were reasonable, and the concession by Ms Churchill, Crown prosecutor, who appeared for the Director - that your plea should be regarded as an early plea - was entirely appropriate.

20 Nonetheless, Associate Professor Carroll's report and evidence on the plea were very important. Associate Professor Carroll made a formal diagnosis that you suffer from a schizoid personality disorder. Indeed in his opinion you met each of the seven criteria set out in DSM-5 for the disorder.

21 Professor Carroll set out your history. You were born in Buenos Aires, Argentina and your family came to Australia prior to your second birthday. Your family have lived in Melbourne - I suspect, more appropriately, in the vicinity of Melbourne - and have been in the present family home since the year 2000.

22 You had, as you described to Associate Professor Carroll, a good, normal childhood and education, although you did not complete Year 12 because you were not sufficiently motivated to do so. You claim to have had many friends at school but did not have any lasting friendships. I could interpolate there that it would seem from the evidence given by Associate Professor Carroll that it was about that time the real signs of the onset of what now besets you began to truly appear.

23 On leaving school, you worked as an apprentice chef for 12 months and had a number of other jobs working in kitchens, and in areas such as warehousing and as a forklift driver. In more recent times, about the last five years before these events, you had worked for your father in the family business installing rolling doors. You did not regard yourself as troubled by the lack of your long-term friendships.

24 You moved out of the family home and at one stage you left Victoria and went to Queensland, where you remained for between one and two years and then came back to Victoria. At the time of each of those shifts, you left your belongings behind and it was necessary for your parents to pay for your return to Victoria.

25 You accept that in the time leading up to the offence, you had little communication with your parents while living in the same house, but you do not have any explanation for that. You told Associate Professor Carroll that you had plenty of relationships, the longest for just under two years, but it does not appear that you ever lived separately in a relationship.

26 Your parents largely confirmed what you told Associate Professor Carroll, although you probably had some difficulties when you first commenced school because your first language was Spanish. While growing up, you did have friends but your parents noted that you had been very competitive.

27 From the end of Year 10 at school, you appeared to lose interest in your schoolwork. Your parents were worried that you were being bullied, but you have denied that was so and you still did appear to have a group of friends around where you lived. You completed Year 11 and left Year 12 after three months because you simply discontinued going to school.

28 It was at about the age of 20 that your parents report that you moved out of home and you distanced yourself from your family, ignoring their attempts at contact. Your family urged you to seek psychological support but nothing came of that. Although you returned home for a few years, your parents have had little contact with you over a period of four years, which included the time that you had gone to Queensland.

29 On one day in 2014, when you were working with your father, it was agreed that you would go home. You apparently could not cope at work on that day. You got the train to Bacchus Marsh and then decided to walk the 23 kilometres home and got lost in the forest on the way. After three days, you were found by some hikers and airlifted to the Alfred Hospital to be treated for exposure, although at that time your father reported your behavioural difficulties, in particular your tendency to reclusion and depression seemed to increase. There appeared to have been some psychiatric examination at The Alfred Hospital, but it did not appear to come to anything.

30 In the five years preceding the events which bring us here, you lived with your parents but appeared to have spent most of the time in your room, including having your own pantry of food. You worked with your father installing roller doors but your attendance was irregular and had deteriorated markedly in the months prior to the these events.

31 When your father was admitted to hospital with an aortic aneurysm in July 2016, you appeared to lack empathy for him and your mother. Your mother felt that you were trying to convince her that your father would die.

32 On the days surrounding this offending, your parents regarded your behaviour as even more difficult than usual. In your time in custody, you have not evidenced any acute psychiatric systems and your parents regarded your appearance and conduct, when they saw you in October 2017 and June 2018, as being much improved from your mental state prior to the offending.

33 You told Associate Professor Carroll that you had shut yourself off for reasons which you are unable to explain and you do not know why you did not sign the insurance form and had no motive to not sign it. You could not explain the attack on your father and said, 'I just snapped, I guess.' But you do not know why. You said that you made the decision to stab your father in the moment, but you later said to Associate Professor Carroll,

He later told me that he took the knife to bed 'just that night' and initially said he did not know why, but then said, 'With the intention to kill him ... I don't know why that day.' When asked when he had formed such an intent to kill him, he said, 'When I snapped, when I attempted to kill him', but then said, 'I went to bed with the intention to kill him when I snapped, that's when it happened.' When asked exactly when he had 'snapped', (ie in the moment prior to the attack or when he had taken the knife to bed), he said, 'Don't know.'

When asked why there was only one stab, he said he thought that this would be sufficient. When asked why there had not been multiple stabbings, he said, 'I'm not that much of a cunt'.

With respect to his emotional state at the time, he said, 'There was no emotions flying. I was pretty normal. I didn't feel anything.'

With respect to his feelings about the incident now, he told me with a striking absence of objective emotional tone, 'It's terrible, I tried to kill my own dad. There's no explanation for it.' He says that he did not think that it would happen again, saying, 'I think once is enough.'[2]

34 On the plea, I received victim impact statements from both your parents, and your mother's statement was read to the Court. Apart from the physical injuries to your father, the pain that you have inflicted on your family is clear. The attitude of your parents is very forgiving and supportive, and although not expressed in words, your parents seem prepared to accept that you were not always as difficult a person as you became, or a violent one.

35 There is nothing about the victim impact statements which would leave me to impose a more severe sentence then I would otherwise have imposed.

36 I accept that within the bounds of your illness, you are remorseful. The issue which was most significantly in dispute at the beginning of the plea was whether or not you suffered from a condition which would give rise to considerations set out in the case of R v Verdins,[3] the details of which are:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[4]

37 That is, did you suffer from a condition which would reduce your moral culpability and reduce the need for general deterrence in particular, or otherwise effect the way in which you might serve any sentence that I impose upon you.

38 The dispute arose because of Associate Professor Carroll's diagnosis that you were suffering from a severe schizoid personality disorder. In general, the Court of Appeal in this State decided in the case of DPP v O'Neill[5] that personality disorders did not come within the ambit of the Verdins principles because such disorders were not mental illness.

39 Mr Moglia, who appeared on your behalf, submitted that the principles set out in O'Neill could be distinguished because of your particular type of personality disorder and that the part of the disorder displayed in your offending and behaviour generally. Associate Professor Carroll was of great assistance to the Court in this regard.

40 One of the things that had happened is that as Associate Professor Carroll had spoken to your parents at length before he settled his diagnosis. In particular, it became necessary to distinguish your schizoid personality disorder from simple schizophrenia. He described your disorder, though, as having some similarities to autism. Your ability to react and deal with others and deal with your emotions is significantly affected by your disorder. There is a tendency towards comorbidity with other disorders, such as depression, and Associate Professor Carroll diagnosed you as suffering from major depression in the months leading up to these events.

41 Although Associate Professor Carroll did not say so in terms, there seemed little doubt that he would regard your disorder as one which would attract the principles of Verdins and for my own part, I am satisfied that when the Court spoke of these matters in O'Neill, they were not speaking of disorders which can be described in the way that your order is described.

42 I am satisfied that Principles 1 and 3 of Verdins operate in your behaviour. That is, the conditions from which you suffer reduces your moral culpability and the need for general deterrence. I regard the need for general deterrence as being significantly moderated, although not entirely removed.

43 I am satisfied, as matters stand, that Verdins Principles 5 and 6 relating to the serving of your sentence and possible deterioration of your condition cannot be said to mitigate your sentence.

44 In any event, in your case, the significance of the operation of Verdins Principles 1 and 2 cannot be usefully separated from the propositions that would be subsumed by Principles 5 and 6.

45 Your future is hard to assess, but at the moment your depression appears to be under control and the diagnosis of your disorder does assist in future planning.

46 It is an important feature of this case that, due to nobody's fault, your actual condition remained undiagnosed until these events occurred. I am satisfied that your parents did their very best to try and work things out, but were simply not able to do so, and I emphasise, as I said at the time of the plea, they should not in any way blame themselves for anything that happened. It was simply not their fault.

47 It is fair to say that your release back into the community will have to be carefully managed, but you continue to have the support of your family.

48 As I have already observed, your plea of guilty was an early one and valuable to the community. The crime of attempted murder is not an easy crime to prove, and as I have already noted, I am satisfied that, insofar as you are able to feel and express remorse, you are remorseful, and you are sorry for what you did to your father.

49 This is a reasonably serious example of the crime of attempted murder. You have frankly admitted that it was your intention to kill your father in the way that I have already set out, but you did not persist with the attack. Whether that was because your father prevented you from doing so, or because you decided not to persist, the fact of the matter is there was the single stab wound.

50 I have to have regard to just punishment and denunciation of violent conduct of this kind, and I have done so.

51 Subject to what I have said earlier, I have had regard to the principles of general deterrence.

52 I indicate that were it not for the condition from which you suffer and, in particular, the support of your family, I would have imposed a much higher sentence.

53 Although it was urged on me that I ought to impose a non-parole period which allowed for a longer period on parole, having regard to the evidence of Associate Professor Carroll in relation to your prospects of ultimate rehabilitation, I have not done so, although I have probably given a slightly longer period of potential parole than I might otherwise have done.

54 Hector Bruno, you are sentenced to be imprisoned for seven years, with a period of four and a half years before you will be eligible for parole.

55 I declare that you have served 512 days by way of pre-sentence detention.

56 I indicate that had it not been for your plea of guilty, I would have sentenced you to be imprisoned for ten years with a non-parole period of seven years. I order that this declaration, and indication, be entered in the records of the Court.

[1] Prosecution Opening on the Plea dared 30 August 2018, [21].

[2] Report of Associate Professor Carroll dated 3 August 2018, [138]-[141].

[3] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[5] (2017) 47 VR 395 ('O'Neill').