DPP v Smith [2013] VSC 438

2 On 30 January 2013, an investigation was held under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the 'CMIA') before King J. The jury empanelled on that occasion found Mr Smith to be unfit to plead to the two charges of murder.

3 In accordance with the procedure contemplated by the CMIA, a special hearing under Part 3 of the Act commenced before me on 3 June 2013. On 5 June 2013, Mr Smith was found by a jury to be not guilty because of mental impairment on each charge.

4 The substance of the jury's finding on the special hearing was that they were satisfied that Mr Smith had engaged in the conduct constituting the offences of murder, but that he was suffering from a mental impairment at the time which meant either that he did not know the nature and quality of his conduct, or that he did not know that the conduct was wrong.

5 Following the jury's findings, I declared Mr Smith to be liable to a supervision order under the CMIA,[1] and remanded him to the custody of the Victorian Institute of Forensic Mental Health pending the making of that order. I adjourned the subsequent hearing of the matter until today so that the necessary reports under ss 41 and 47 of the CMIA could be obtained and provided to the Court.**

**6 The facts surrounding the death of Michael and Kim Smith can be briefly stated. At about 10:25am on Friday 16 December 2011, they were both discovered dead in their bedroom after Kim Smith had failed to arrive at work. Each was found to have sustained multiple stab wounds.

7 Michael and Kim Smith had two children: Brett and Alexis. As at December 2011, Brett Smith, then aged 32, lived with his parents at their home in Vermont South. He was unemployed and was said to have been suffering from significant psychiatric illness. Alexis had left the family home some years previously.

8 The Crown case was that at some time during the night of 15 December 2011, Brett Smith attacked his parents while they were in bed and killed both of them by stabbing each of them repeatedly. This was said to have occurred in the context of a 'fairly volatile aggressive relationship' between Brett Smith and his parents.

9 Evidence was led at the special hearing that, at 8:25am on 16 December 2011, Brett Smith was seen by a neighbour in the vicinity of the Vermont South property sitting at a bus stop. Police investigations also revealed that Brett Smith's laptop had last been accessed at 9:03pm the previous night. It was contended that this evidence established that Brett Smith had been present at the Vermont South property at the relevant time.

10 Crime scene examiners attended the home on the afternoon of 16 December 2011. In the kitchen they found a bloodstained multi-coloured t-shirt in a rubbish bin which, on the Crown case, Brett Smith had been wearing on the previous evening. Two samples were taken from the collar of the shirt to test for 'wearer's DNA'. One of these samples, in particular, provided extremely strong support for the proposition that Brett Smith was the source of the DNA on the shirt. This was also expressed in evidence in the form of a 'likelihood ratio'. The DNA was estimated to have been 270 billion times more likely to have originated from Mr Smith than from a random person in the Australian Caucasian population.

11 The blood on the shirt was also examined, and found to contain DNA from each deceased. Nine areas of blood staining on the shirt were subjected to DNA analysis. The samples predominantly matched DNA from Kim Smith, however one profile was a clear match to Michael Smith. The opinion of Mr Maxwell Jones, a forensic scientist employed at the Victorian Police Forensic Services Centre, was that all the blood 'appear[ed] to be either matched to Michael Smith or Kim Smith'.

12 Due to his psychiatric condition, Mr Smith was transferred to the Thomas Embling Hospital on 29 December 2011, where he has since remained.**

**13 Both parties submitted on the special hearing that, if Mr Smith had stabbed his parents, he had available the defence of mental impairment.

14 Counsel for Mr Smith ran an appropriate defence - in the light of the obvious difficulties involved in obtaining instructions from his client - whereby he put the Crown to its proof in respect of whether Mr Smith was the person who had stabbed his parents, and highlighted certain matters in the evidence that might conceivably have cast doubt on the Crown case.

15 Medical evidence as to Mr Smith's psychiatric state was, as it had been before King J, given by Dr Lester Walton and Dr Sachin Jindal.

16 Dr Jindal had, in the intervening time between the investigation and the special hearing, prepared an updated report based on a further meeting with Mr Smith to bring his opinion up to date. At that meeting, Mr Smith had expressed a number of delusional beliefs including, for example, that his parents were still alive. Mr Smith apparently held that belief because he saw his parents while engaging in what he called 'astral travel'. Dr Jindal's opinion was that Mr Smith was suffering from chronic paranoid schizophrenia.

17 Dr Walton based his opinions on an interview he had held with Mr Smith at Thomas Embling Hospital on 18 May 2012. He outlined Mr Smith's psychiatric history, and noted that he had first been diagnosed as psychotic and having deluded ideas in 2004. Dr Walton agreed with Dr Jindal's assessment that Mr Smith suffered from chronic paranoid schizophrenia. He explained that that condition affected 'virtually every area of functioning in behaviour except intelligence'.

18 Both Dr Walton and Dr Jindal expressed the opinion that Mr Smith did not know that what he was doing was wrong when he stabbed his parents to death. Dr Walton also expressed the view that it was a 'live question' whether Mr Smith's mental impairment may have been such that he did not know the 'nature and quality' of his conduct, as that term is used in the first limb of the definition of 'mental impairment' in s 20(1) of the CMIA. That was so even though Dr Walton, in 30 years of practice, had only seen six or so cases where a mental impairment had had that effect.**

**19 A report on Mr Smith's current mental condition has now been provided to the Court, under s 41 of the CMIA. That report, which is dated 12 August 2013, was prepared by Dr Prashant Pandurangi, a Consultant Psychiatrist with the Victorian Institute of Forensic Mental Health.

20 Dr Pandurangi based his report on a number of interviews with Mr Smith between February 2012 and August 2013. At an interview on 10 August 2013 conducted for the purpose of preparing the s 41 report, Mr Smith presented with 'mildly disorganised thoughts', and stated that he continued to hear voices. He reported ongoing experience of 'astral travel'.

21 Dr Pandurangi stated that Mr Smith 'needs ongoing hospitalisation to achieve stabilisation in his mental state'. He added that Mr Smith**

continues to present with florid psychosis with significant persecutory beliefs and auditory hallucinations and he has had a modest response to assertive treatment. He has a limited understanding of the nature of his offence and is reluctant to discuss it in any detail. This would indicate that Mr Smith would continue to pose a serious risk of violence to others, at this stage, in a less secure setting than Thomas Embling Hospital.

[Mr Smith] needs a comprehensive risk assessment of interpersonal violence and management plan. His offence specific issues will require long-term assessment, given his poor understanding and reluctance to discuss them, by a multidisciplinary team, in an evolving therapeutic alliance with him. This type of work will need to be carried out in a secure hospital setting, with a concentrated focus on recovery and rehabilitation.

He will also require a long-term graduated rehabilitation program towards his vocational, educational, and recreational needs. In my opinion, such comprehensive rehabilitation needs can only be effectively met by way of a Custodial Supervision Order (CSO).

**22 Section 42 of the CMIA permits 'family members' and 'victim[s] of the offence' to make a report to the Court for the purpose of 'assisting counselling and treatment processes for all people affected by an offence' and 'assisting the Court in determining any conditions it may impose on an order made in respect of a person' under the Act.

23 I have received family member reports from Mr Smith's sister, Alexis, and from his aunt, Ms Maureen Robinson. These reports demonstrate graphically the effect Mr Smith's conduct has had upon his family. I have also received a victim impact report from the friend of the two deceased persons who discovered their bodies, Ms My Hang Ryan. That report speaks vividly of the emotional and physical impact of that discovery. [2]**

**24 Based on the s 41 report, as well as the evidence led at the special hearing, a custodial supervision order is appropriate in this case.[3] I have reached that conclusion in light of the matters listed in s 40(1) of the CMIA, including, in particular, the nature of Mr Smith's mental impairment[4] and 'the need to protect people'[5] from the danger he would pose if now released into the community.

25 I have received an updated s 47 report, dated 7 August 2013, confirming that treatment can continue to be provided at Thomas Embling Hospital. Accordingly, I will order that Mr Smith be committed to custody 'in an appropriate place', namely the Victorian Institute of Forensic Mental Health,[6] pursuant to s 26(2)(a)(i) of the CMIA.

26 Section 28(1) of the CMIA requires the Court to set the 'nominal term' of the supervision order in accordance with the table that appears in that section. The applicable 'nominal term' for murder is 25 years. Section 28(2) provides that where a person has been found not guilty because of mental impairment for more than one offence, 'the nominal term must be calculated by reference to the offence that carries the longest maximum term of imprisonment'.

27 Accordingly, I set a nominal period of 25 years. Pursuant to s 28(4) of the Act, that term will be taken to have commenced on 16 December 2011.[7]

28 Having declared Mr Smith to be liable to a supervision order on 5 June 2013, the orders of the Court under the CMIA will now be as follows:**

(1) Mr Brett Smith is committed to the custody of the Victorian Institute of Forensic Mental Health, pursuant to s 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;

(2) pursuant to s 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the nominal term of the supervision order is 25 years, which is taken to have commenced on 16 December 2011; and

**(3) Pursuant to s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Court directs that the matter be brought back to the Court for review after three years, dating from today.

29 I have also made an order under s 464ZFB(1) of the Crimes Act 1958 for the retention of a forensic sample (and any related material and information).

[1] See CMIA s 23.

[2] 'Victim' is defined in s 3 of the CMIA to mean 'a person who suffered injury, loss or damage as a direct result of the offence'.

[3] CMIA s 26(2)(a).

[4] Ibid s 40(1)(a).

[5] Ibid s 40(1)(d).

[6] Under s 3 of the CMIA, 'appropriate place' is defined to include an 'approved mental health service'. The Victorian Institute of Forensic Mental Health is, by s 117D of the Mental Health Act 1986, deemed to have been proclaimed an 'approved mental health service'.

[7] Pursuant to s 28(5) of the CMIA, the Court may take into account any period during which the person subject to the order was held in custody or detained in an appropriate place.