R v Arnott [2007] VSC 351

Supreme Court of Victoria|2007-09-19|Before: WILLIAMS J

CRIMINAL LAW - Sentence - Murder of security guard - Unsolved crime - Confession 19½ years after commission of offence - Confession retracted - Effect of mental condition at time of offence - Effect of mental condition at time of sentencing

1 Russell Laurence Arnott, you have been convicted by a jury of the murder of Daniel John Zigante on 3 March 1985. I will now sentence you in relation to that crime.

2 Around 1.00 a.m. on 3 March 1985, you were in the process of attempting to break in to the K-mart store at the Altona Gate Shopping Centre. You had removed pins attaching a security door at the rear of the building to its hinges. You were interrupted by the arrival of Mr Zigante, a security guard employed by Metropolitan Security Services ("MSS"). MSS patrolled the premises after hours and guards were required to check the exterior of the building. You killed Mr Zigante by shooting him in the back with a sawn-off .22 calibre gun which you had brought with you that night.

3 The crime remained unsolved until you confessed to the shooting some 19½ years later, in August 2004. Then, you told police that, when you saw Mr Zigante approaching, you lay down on the ground, feigning illness. You told police that you informed Mr Zigante that you had been to a party and that you were ill. It was when he turned to go back to his vehicle to call for assistance that you shot him in the back.

4 Because you later denied your confession, there was no other direct evidence of what took place before you shot Mr Zigante that night. I am satisfied that, whatever happened in the nature of any exchange between you, Mr Zigante was walking away from you when you shot him in the back. I am also satisfied by the evidence of a gun residue expert, Mr Peter Ross, that you shot Mr Zigante when he was less than half a metre and, very likely, less than 10 centimetres away from your gun.

5 Mr Zigante fell to the ground after the shooting. He died from the loss of blood caused by the bullet passing through his right lung and the right side of his heart. Dr Richard Byron Collins, the forensic pathologist who conducted the post mortem examination, thought that he would have died within one or two minutes of the shooting. You must have left the immediate scene, leaving Mr Zigante lying on the ground at the rear of the building to be found some time later by colleagues.

6 The crime remained unsolved until, on 3 August 2004, you rang "Crime Stoppers", stating that you were responsible for the murder of a security guard behind K-mart in Altona North. You subsequently repeated this information to police, saying that you wanted to speak about the murder because it was playing on your mind and because you recognised what you had done as a serious crime. You also said that you needed help. You were charged with the murder of Mr Zigante

7 You later, however, denied the confession. You maintained that it was a false confession, made while you were suffering from mental illness. Nevertheless, the jury verdict indicates that it was satisfied that you did murder Mr Zigante.

8 You were born on 13 November 1954 and are now 52 years old. Counsel making the plea described your childhood as difficult and dysfunctional, as you were raised by a violent father. He was imprisoned following his conviction late in the 1990s of offences which included abuse of you, your brother and your mother. You give examples of your father's violence, stating that he once threw a sauce bottle at you and that he shot you in the back and leg when you were 13 years old. Medical practitioners who provided reports relied upon in the plea recorded you giving histories of a troubled family background.

9 You left school at the age of 15 and worked as a tradesman's assistant, rigger, scaffolder and, eventually, as a crane driver. You first married at the age of 18 when your future wife became pregnant. That marriage ended unhappily in 1979. Your relationship with your wife and the two children of that marriage broke down irretrievably.

10 You were involved in a motor cycle accident in 1978 or 1979. As a consequence, you have undergone some eight major operations to the spine. You now have a broad disc bulge at one level and a disc protrusion at another in your cervical spine.

11 After the accident, you also received psychiatric treatment and drug therapy for the depression which counsel described as a major consequence of the accident and the stress of your marital breakdown.

12 Between 1982 and 1987 (a period which includes the date of the murder on 3 March 1985), you regularly saw Dr Donald Grant, a psychiatrist at St Vincent's Hospital. You have not relied upon with any report from Dr Grant relating to your mental state during this period.

13 You rehabilitated yourself so that you were able to study full time at TAFE colleges to qualify as a building inspector, a building surveyor and a building technician.

14 In 1983 you met your second wife, Mary, at a dance in Hawthorn. You lived together for a few months in about 1984.

15 During 1984, you fell through a roof you were inspecting. More back surgery followed, involving fusion at three levels of your spine. You were treated with a major tranquilliser for several weeks for post-operative symptoms.

16 You applied for an invalid pension and, on 27 August 1984, some seven months before the murder, you were seen by Dr Edward Cole, a psychiatrist. In a tendered report, Dr Cole stated that your level of disability would qualify you for an invalid pension. He expressed the following opinion :

I believe that Mr Arnott has always been a more rigid and obsessional person than most. He is at present suffering from a moderately severe, chronic anxiety state with the result that his preoccupation with his symptoms has come to approach hypochondriacal levels. However, no evidence was obtained to indicate that he was exaggerating his complaints at either a conscious or unconscious level and I believe him to be quite genuine.

I would not have expected his condition to show much response to psychiatric treatment and it does not appear to have done so. His prognosis will hinge upon that of his underlying neck injury, the exact nature of which seems to be controversial, but I cannot see there being any improvement within the foreseeable future.

17 Between 1985 and 1987 you were, however, able to study part time for an arts degree at Victoria University. Your relationship with Mary continued. She said in evidence during your trial that you were boyfriend and girlfriend at the time of the murder, on 3 March 1985.

18 Dr K V M Rao was your general practitioner from 25 November 1986. He subsequently reported on your constant pain after the spinal fusion operations resulting from the motor accident.

19 In May 1987, you and Mary were married. You also started work as a building inspector with the City of Sunshine, with significant responsibilities in relation to the development of the Sunshine Health Complex, a major project. You felt ill-equipped to cope with your tasks, having previously only worked for the council for some five months and having no prior experience as an industrial building inspector.

20 Dr Rao referred you to the psychiatrist, Dr John Honey.

21 Dr Honey saw you once, on 20 October 1987. You reported almost constant anxiety, worsening under stress, and occasional panic. Dr Honey said you had "a long history of very poor interpersonal skills beginning with a very unsatisfactory family background where it seems that he did not have a good relationship with anyone." He thought you had demonstrated "diminished capacity to deal with stress" which predisposed you to workplace difficulties in a probably stressful job. Your work was likely to have aggravated rather than caused your condition.

22 Dr Honey concluded that you did not need ongoing intensive treatment and he referred you to Dr Philip Wood for psychotherapy. You have not tendered a report from Dr Wood.

23 You suffered a severe mental breakdown in 1988, whilst working for the City of Sunshine. You developed symptoms of an acute paranoid disorder and were voluntarily hospitalised between 13 February and 21 March 1988 and treated with antidepressants and antipsychotics. You were discharged into Dr Wood's care.

24 Many of the medical reports you rely upon in the plea relate to a claim you made for workers' compensation, after that 1988 breakdown. It seems that you attributed your condition to the stress of your work and the material focuses upon your employment's effect on your mental state. Counsel referred to the detail of these reports as evidence of your abnormal mental state on 3 March 1985. He argues that the Court should conclude from them that you had a relevant constitutional psychiatric condition triggered by stress which affected your behaviour on that day, causing you to "react very poorly" in the stressful situation which he concedes you brought upon yourself.

25 I will therefore also refer to the reports in some detail.

26 Dr Helen Wansbrough was your treating psychiatrist from May 1988 to 1996. In a 19 August 1988 report, she recorded an initial diagnosis of depression and an almost resolved Acute Paranoid Disorder. She found no evidence of paranoid schizophrenia. She thought work related stress related was the major contributing factor to your illness and could cause a recurrence. You were unfit to work as a result of your psychiatric condition and would need long term psychiatric care. Dr Wansbrough continued your treatment with anti-depressants and major tranquillisers.

27 You and Mary had your first child in 1989. By October of that year, you had returned to study to qualify as a building inspector and were working towards a Bachelor of Arts degree in psychology.

28 Dr David Sime, a psychiatrist, reported to your solicitors on 13 November 1989. He diagnosed the development of a paranoid ideation brought on by work stress. He favoured Dr Wansbrough's diagnosis of a paranoid personality disorder over one of schizophrenic illness, but said that work stress would precipitate either illness. He found no signs of paranoid ideation or psychotic pointers. You told him that you and Mary had "a great marriage".

29 Dr Sime expressed the view that you appeared to have suffered from "definitive environmental stress", brought on by the after-effects of the motorcycle accident, chronic pain syndrome and operations. He thought that you should ultimately be able to return to the workforce, avoiding work involving the responsibility and strain of your previous job.

30 In a 16 December 1991 medico-legal report, Dr Edward Cole said that you showed no evidence of active psychosis and appeared to have a good insight into what he said was your former condition.

31 You qualified as a building surveyor in 1992 and you and Mary had a second son that year. You had started studies for an associate diploma in architecture, but it appears that you did not complete them or your Arts degree.

32 On 2 December 1992, Dr Cole reported on a recent examination. He thought you seemed anxious, preoccupied and a little depressed, but did not consider your symptoms disproportionate to your situation. He found no evidence of psychosis and thought your psychotic illness was in remission, although you were taking large doses of tranquilising and anti-depressant medication. He thought that you suffered from recurrent psychotic episodes with a significant feature of mood disturbance interspersed with periods of comparative normality. You would need appropriate psychiatric care and medication in the foreseeable future.

33 Dr John Honey saw you again, at the request of your solicitors, on 17 March 1993. Having summarised your history and confirmed his previous opinion, he said this:

So overall the sequence is this - a premorbid personality, rather obsessional, shy and withdrawn which predisposed him to developing a condition, but he suffered no condition until he suffered with stress of the back injury; the condition settled down until he was exposed to the stress of the work at Sunshine City Council which was an aggravation, he was treated with a medication which caused an adverse reaction leading to hospitalisation on two occasions.

34 Dr Cole also saw you again on 17 March 1993. He thought your psychosis was in remission, but that you continued to suffer from a chronic anxiety state and a moderate degree of reactive depression attributable to work problems.

35 You moved to Anglesea in about 1993, but Mary was unhappy and returned to Melbourne in about 1994 or 1995.

36 You continued to see Dr Wansbrough. In her 12 January 1995 report she stated that your difficulty in controlling your symptoms resulted from vulnerability to stress and the adverse effect of certain medications. She noted your chronic pain from back and neck injuries, recurrent migraines and chronic gastric problems. Resulting severe chronic stress aggravated your psychiatric and, particularly, your depressive symptoms.

37 Dr Wansbrough considered that the stress of more spinal surgery in November 1994 had precipitated a relapse of psychotic symptoms with detrimental effects on your family life. She found you severely impaired by physical and mental illness and thought you needed ongoing high levels of medication for psychiatric illness, the symptoms of which were only moderately controlled between acute relapses. She considered you unfit for work and unsuitable for rehabilitation. She thought you would probably have relapses resulting in increasing residual impairments and handicaps.

38 You and Mary were divorced in 1995 or 1996. In about 1996, you arranged for State Trustees to take control of your financial affairs.

39 In 1997, you moved to Geelong and Dr Wansbrough referred you to Dr Dennis Shum, another psychiatrist. He diagnosed a chronic depressive disorder, an adjustment disorder, physical pain and a remitted paranoid disorder with a tendency towards relapse. He considered your 1988 employment a significant contributing factor to your condition. He treated you fortnightly.

40 On 3 June 1998, Dr Shum reported brief periods of hospitalisation "for distress and agitation caused by intercurrent life stressors". He considered ongoing psychiatric support and fortnightly treatment essential to prevent your further deterioration.

41 In April 1999, he noted continuing treatment and no change. You had unsuccessfully attempted a relationship with a new girlfriend.

42 You saw Dr Sime again and he confirmed his previous views in another medico-legal report dated 29 September 1999.

43 In 2000, you went to Tasmania and the Public Trustee in Tasmania took over the management of your financial affairs. In 2001, you were hospitalised in Hobart. You later had electroconvulsive therapy in Launceston and more spinal surgery in November 2002.

44 In July 2003, you returned to Victoria. You subsequently had psychiatric care for a month in St Vincent's Hospital and at the Royal Melbourne Hospital and other units for periods of a week or two. You started living in Hamilton House in Albert Park, in accommodation for people with mental illnesses.

45 You saw a psychiatrist, Dr David Grounds ten times between 29 December 2003 and your confession on 4 August 2004. On 29 December 2003, he diagnosed you to be suffering from a schizo-affective disorder which you had had from your twenties or early thirties. You were treated in the Alfred Hospital between 22 March and 7 May 2004 with drugs consistent with that diagnosis.

46 Dr Grounds said that a person with such an illness will behave in a manner out of their previous character and might be vulnerable to risk taking behaviour.

47 Dr Danny Sullivan, a Forensicare consultant forensic psychiatrist, provided a detailed pre-sentence psychiatric report dated 27 April 2007. He reviewed your history and noted multiple previous diagnoses. He concluded that you suffer from a significant personality disorder.

48 You were exhibiting gross psychotic symptoms on 27 April 2007. Dr Sullivan thought that they might be explained as psychotic episodes in times of stress, followed by reversion to wellness with no residual deficits, consistent with a significant personality disorder. He thought it less likely that you suffer from schizophrenia and a chronic psychiatric illness. He considered it relatively unlikely that you were consciously generating psychotic illness symptoms, to gain the benefit of a reduced sentence. He could not be certain, however as to whether or not you were malingering or have a factitious disorder.

49 Dr Sullivan reported your frequent contact with medical and psychiatric staff in custody. You have spent much time in management cells at Port Philip Prison after assaulting staff. You have been noted to be highly suggestible and to have volunteered numerous implausible and bizarre symptoms which did not accord with psychiatric diagnoses. You have limited interpersonal skills and have threatened to harm yourself and others if your wishes have not been met promptly.

50 Dr Sullivan said that you will need psychiatric and medical attention and psychological management whilst in prison and will pose a risk of harm to yourself and others. He thought that your personality structure would make your incarceration difficult, alienating correctional and professional staff and fellow prisoners. He believed that you were currently being adequately and appropriately treated and wouldn't expect medication to control your symptoms.

51 Dr Sullivan said that you may require periodic transfers to Thomas Embling Hospital. Indeed, Dr Jayarajah has reported that concerns about your mental state did result in your involuntary transfer to Thomas Embling Hospital on 9 May 2007. You are no longer an inpatient there.

52 In custody, you have also continued to suffer from multiple physical problems including diabetes, back and neck and episodic chest pain, hypertension and reflux oesophagitis. You have requested surgical intervention for spinal pain. However, Dr Milner of St Vincent's Correctional Health Service has expressed doubt as to whether surgery would relieve your pain or be offered in his 23 March 2007 report.

53 Counsel making the plea submitted that the Court might consider making you the subject of a hospital security order under s 93A of the Sentencing Act 1991. He referred to the materials relating to your current mental state and also to the fact that the plea was delayed because you were not well enough to attend before the Court.

54 Having considered the evidence as to your current mental condition, your medical psychiatric and forensic history and your social circumstances, and taking into account Dr Sullivan's belief that you are being adequately and appropriately treated, I do not consider such an order appropriate. I am not satisfied (as required by s 93A(1)(a)(iii)) that it is necessary for your health and safety or for the public's protection that you be detained and treated in an approved mental health service.

55 Counsel submits that the circumstances of the murder should be seen as a very stressful series of events and argues that, because of your vulnerability to stress, you made one of the "poor judgment calls", to which you were prone, when you shot Mr Zigante. He reminds the Court that you told police that, on that night, Mary had visited you and that you had "lost the plot". He argues that someone not in your psychiatric state would not have behaved as you did in that stressful situation and argues that you are less morally culpable than would otherwise be the case.

56 Counsel for the prosecution responds that your crime should be seen as callous and cold hearted, rather than as merely a poor judgment call. He says that there are aggravating features. You took a sawn-off .22 calibre gun with you to commit a burglary and shot a security guard in the back at point blank range. He emphasises the importance to the community that such people be protected when they perform their necessary role. He points out too that you committed the murder in the course of another criminal offence and told police that you did so to avoid apprehension.

57 It is common ground, however, that your current state of physical and mental health means that imprisonment might have an adverse effect on your mental state and that your sentence will weigh more heavily upon you than others.

58 Counsel argues that you are not a suitable vehicle for general deterrence in light of both your mental state at the time of the offending and your current mental condition. He also submits that these considerations and the absence of any relevant other convictions demonstrate that the need for specific deterrence is reduced in your case. The prosecution does not dispute these propositions.

59 Counsel for the prosecution argues that, although the Court should take your confession into account, its significance is reduced because your crime was unsolved for many years, during which there was no resolution for Mr Zigante's family and friends. He concedes, nevertheless, that the Court is sentencing you for what is now an old crime. Finally, he contends that yours is a serious crime warranting a substantial period of imprisonment, even though its length should be reduced to take account of the matters raised in the plea.

60 Counsel representing you also points out that this is an old crime and that there has been a lengthy delay between the offence and conviction and sentence. He refers in general terms to the difference between the length of the sentence which might have been imposed in accordance with the prevailing "tariff" at about the time of the offence and that which a crime of this type would attract today. Counsel for the prosecution responds that the penalty for murder has remained unchanged.

61 When sentencing you, I must take into account any mental disorder or abnormality from which you suffered at the time of the offence, whether or not your condition was properly described as a serious mental illness.[1]

62 I am satisfied from the material tendered in the plea that I should regard you as having been suffering from some relevant mental disorder or abnormality at the time or your offence. Numerous different labels have been attached to your condition over time. I have taken the views expressed in all the tendered reports into account.

63 There must be a connection between your condition and your crime. Notwithstanding the absence of reports from a treating psychiatrist or general practitioner specifically directed at your mental state on 3 March 1985, I am satisfied by Dr Grounds' evidence that you may have been acting out of your previous character and taking risks at the time of the murder. I accept that, in the circumstances, you are somewhat less morally culpable than you might otherwise have been.

64 Further, I take the view that, despite the serious nature of your crime, the requirement for the sentence to further the objective of general deterrence should be sensibly moderated in this case.

65 The significance of your sentence in terms of specific deterrence is also diminished, in the absence of any relevant criminal behaviour during the lengthy period between your crime and your imprisonment. I also note that you have actively sought help in relation to your mental condition throughout.

66 I am satisfied that you presently suffer from a mental disorder or abnormality which will have the effect that imprisonment will weigh more heavily upon you than upon someone without such a condition. I am not satisfied that it will necessarily worsen as a result of incarceration, given the probability that you will have access to treatment when required. However, I do take account of that possibility.

67 I also take into account in your favour that, even though you subsequently retracted your confession, you showed remorse by admitting to a crime which, in all likelihood, would otherwise have remained unsolved. Had you not done so, there would have been no resolution for Mr Zigante's family and friends.

68 As far as the issue of delay is concerned, I note that it would appear to have resulted in part from your absconding. I do take into account as a mitigating factor the likely effect of stress you might have experienced in relation to the possible detection of your crime. On the other hand, I must not encourage absconding by giving any additional leniency on account of resultant delay.

69 I am not persuaded that any potential disadvantage from changed sentencing practices which result in an increased "tariff" would outweigh the advantages of the 19 ½ years of liberty between the date of your offence and your confession. I regard that aspect of delay as a neutral factor in relation to your sentence.

70 I note, however, that yours was a serious crime, involving you shooting a security guard from behind and at close range. He was performing his important duties and, according to you, had turned away, to seek help for you. Such an offence warrants denunciation and would otherwise have attracted a lengthy sentence of imprisonment.

71 Balancing, as best I am able, all the considerations to which I have referred, I will sentence you to imprisonment for a period of 17 years and I will fix a non-parole period of 12 years and six months.

72 I note that you have spent 1142 days in custody and I declare that this time shall be reckoned as a period of imprisonment already served under this sentence.

[1] See R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 at [3] per Maxwell P, Buchanan and Vincent JJA.

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