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[2005] VSC 497
Supreme Court of Victoria
2005-12-20
BONGIORNO J
Original judgment source is linked above.
CRIMINAL LAW - sentence - manslaughter - conduct endangering life - drug induced psychosis - relevance of voluntary ingestion of illegal drugs - cumulation - longer than usual parole period.
1 On Saturday, 19 July 2003, you, Roderick Nigel Martin, drove a stolen 16 tonne tip-truck on the wrong side of the Western Highway near Ballarat until it collided with a small sedan, instantly killing the driver, Mr Raymond Turner. Before that collision you had driven the tip-truck for over 50 kilometres on the Western Highway whilst being pursued over most of that distance by a large number of police. Unfortunately they were unable to apprehend you before the fatal collision because of the danger your driving posed both to them and to other users of the highway. You had stolen the tip-truck from business premises at Bacchus Marsh. At the time of all these events you were floridly psychotic - a state brought about by your having ingested illegal drugs in the period immediately before the events occurred.
2 On 7 June of this year you were presented for trial on a charge of having murdered Mr Turner and upon a number of other offences arising out of your activities on that Saturday morning. Although you were due to be tried before this Court sitting at Ballarat, inappropriate and inaccurate publicity on the local Ballarat television channel concerning a pre-trial application necessitated the proceeding being transferred to Melbourne where it was tried before a jury which returned a verdict on 24 June. By its verdict the jury found you not guilty of the murder of Mr Turner but guilty of his manslaughter. It also found you guilty of stealing the tip-truck and of four counts of reckless conduct endangering life in respect of other highway users. You were acquitted of six other counts of that offence, including two relating to police officers involved in the pursuit and of one count of assault in respect of another police officer.
3 It is now this Court's duty to sentence you according to law and to explain the reasons for that sentence publicly so that you will understand why you will be imprisoned and the community, in whose name you will be sentenced, may know the reasons you are receiving the sentence to be imposed.
4 The story of the bizarre sequence of events which culminated in Mr Turner's tragic death commenced a few days before 19 July 2003 when you made your way from your home city of Adelaide to Melbourne by bus. You did this, you said, because surgical treatment for a hernia from which you suffered could not be provided in Adelaide for some considerable time. Upon arriving in Melbourne you said you sought treatment at a public hospital or hospitals but were told that there was a waiting list for hernia surgery as you had found there was in Adelaide.
5 You have told a number of psychiatrists who have assessed your mental state in recent times that for several weeks before travelling to Melbourne you were experiencing serious psychotic symptoms involving visual and auditory hallucinations and delusional beliefs. For example, you said that you saw spots on people and animals which had some secret significance for you. You said that around the time of your decision to travel to Melbourne you felt "an alien life force" was talking directly to you and giving you thoughts. You said you came to believe that aliens were going to be "coming down" and you had a subjective sense that there was a "power" within you. You said that as you boarded the bus to Melbourne you had a strong sense that Adelaide was "shutting down", such that you had to leave that city. On your account these symptoms seemed to become progressively worse over the period immediately before 19 July whilst you were in Melbourne after failing to get immediate treatment for your hernia. You continued to have delusions and visual and auditory hallucinations concerning people you associated with and places you visited. You purchased a knife during this time, you said, to make you feel safer.
6 After being in Melbourne for some days, you purchased a train ticket to Adelaide but fearing being "locked in with other people" on a train, you decided instead of travelling by train to walk to Adelaide. On the evening of 18 July, by some means or other you got to the Western Highway and then walked along it towards Ballarat. At about 4.00am on the morning of 19 July you were spoken to by police who had been called to a point on the Western Highway near Long Forest Road, Bacchus Marsh by someone who had reported your presence. They found you in a somewhat agitated state. In the course of your interaction with those police you allegedly produced your knife and threatened a police officer before disappearing into a paddock in the darkness. You were acquitted by the jury of a charge of assault arising out of this incident.
7 By about 7.15 am that morning you had got to Bacchus Marsh where you stole a Nissan tip-truck from business premises by driving it through a closed steel gate. From there you drove to the Western Highway and headed towards Ballarat. You did so, you said, so you could get home to Adelaide. The truck was reported stolen shortly thereafter and at about 7.52am you were observed by police driving it in the vicinity of the Pykes Creek Reservoir bridge. You were driving in the centre of the three west-bound lanes at about 80 kilometres per hour. You ignored police signals to stop.
8 From this point onwards a pursuit began which eventually involved a large number of police vehicles and ended only with the death of Mr Turner and your arrest some considerable time later at a point about 60 kilometres west of Pykes Creek. Early in the pursuit you threw a number of items, including two large bread crates, from the truck in an effort to hinder police in their attempts to apprehend you. This tactic and the fact that you were driving a large heavy vehicle meant that the police were unable to apprehend you safely and the pursuit continued.
9 After being chased for some time you reversed your direction of travel by crossing the median strip of the divided highway and travelling back towards Melbourne. You did this for over a kilometre before again doing a u-turn to once again travel generally west. You later told police you did this because you became confused by road signs. After the highway ceased to be divided, near Dowling Road, you commenced to drive on the wrong side of the road forcing a number of vehicles, including a large B-double truck, to take drastic evasive action. One driver who observed you said you were laughing as you engaged in this bizarre and extremely dangerous behaviour which seriously endangered the lives of a number of other road users. You later told psychiatrists that you were desperate to return to Adelaide because you believed your family was in some sort of mortal danger. During the whole of this period you were clearly floridly psychotic.
10 The end of this episode occurred only when you drove the stolen truck directly at Mr Turner's vehicle. According to witnesses you did so in a straight line without decreasing speed. Forensic evidence corroborated their observations.
11 After colliding with Mr Turner's vehicle the truck crossed the road, mounted an embankment and came to rest in a paddock. Despite a series of different tactics used by local police to persuade you to do so, you refused to leave the vehicle and were not able to be arrested until a unit of the Special Operations Group arrived from Melbourne. You were taken into custody at about 11.20am.
12 Such material as is before the Court as to your personal history comes from the psychiatric reports before the Court, particularly that prepared by Dr Andrew Carroll, the assistant clinical director of the Victorian Institute of Forensic Mental Health, who saw you at a lengthy interview in September 2004. For the purposes of his report, Dr Carroll had access to a large body of material including not only the witness statements and your police interview in this case but also psychiatric files from Glenside Hospital South Australia relating to your admissions there between 1995 and 2001. The Crown has not sought to challenge the veracity or reliability of any of the history obtained by Dr Carroll and, accordingly, the Court can act upon it for sentencing purposes.
13 You were born on 11 November 1969 and are now 36 years of age. You were the youngest of two children in a family in which Dr Carroll found no clear history of major illness. However you reported to him that your father was short-tempered and intimidating and regularly inflicted physical abuse upon you whilst severely restricting your social activities. You described to Dr Carroll episodes of violence which you said continued until you were about 18. Your school history was not entirely satisfactory, but you left at the age of 15 when you had difficulty with mathematics.
14 According to your parents' account recorded in the Glenside notes, each job which you obtained after you left school was better than the one before it. Up until the mid 1990s it appears that you had a good employment record in that you were generally employed in manual jobs such as storeman, truck cleaner and at a glass works company. Your own account to the psychiatrist however was that your various jobs were characterised by harassment and mistreatment by employers.
15 Your work history continued unremarkably until, in the mid 1990s, you left your employment because of a physical altercation with a co-worker. As a result of this incident you received a payment of some $58,000 which, you told Dr Carroll, you planned to use to "party" by using illicit drugs for a year and then to kill yourself!
16 After this employment ended, problems with substance use, which had always been in the background, became more significant as did mental health difficulties which you were experiencing. You have never consistently worked for longer than a few months since.
17 You told Dr Carroll that you first had contact with a psychiatric service at about the age of 23 when you had a "breakdown" following the assault to which reference has been made. The Glenside records show that between 1995 and 2003 you had over 15 admissions to the public psychiatric unit. These admissions tended to occur at times when your mood was characterised by depression, irritability and anger, usually complicated by psychotic symptoms such as auditory hallucinations and persecutory delusions. On every occasion upon which you were admitted to hospital you had been indulging heavily in illicit drugs in the time leading up to the admission. Your psychosis was diagnosed as drug induced and was thought to co-exist with an anti-social personality disorder.
18 You would appear to have commenced taking cannabis at about the age of 15 and soon became a regular user. Later you added amphetamines and briefly used heroin. You have tried LSD and cocaine and for several years in the mid 1980s you were dependent on clonazepam, a benzodiazepine.
19 In November 2001 on one of the occasions on which you were discharged from Glenside, Dr Brian McKenny, the senior consultant psychiatrist and Dr Jon Symon, his registrar, wrote a letter to the South Australian Coroner detailing their concerns for your safety, the safety of the general public and staff involved in your care should you continue to use amphetamines. This letter, written by two psychiatrists who had a full knowledge of the psychosis from which you suffered when you took illegal drugs is remarkable and graphically demonstrates the frustration they felt at not being able to persuade you to cease this dangerous practice.
20 According to their reports you told the psychiatrists who assessed you in respect of this case that you had used cannabis both before leaving Adelaide and whilst you were in Melbourne, although the quantity you took appears to have been relatively small. Not only is this what you told the doctors but forensic tests performed after your arrest confirmed the veracity of what you had said. Nonetheless, it is the opinion of all those psychiatrists that the psychosis which you were manifesting at the time you committed these offences was induced by consumption of that cannabis. Your counsel submitted that the evidence suggested that you had not taken amphetamines at the relevant time and that it was the ingestion of amphetamines which concerned Doctors McKenny and Symon when they wrote to the Coroner in 2001. Whilst it might have been amphetamines that precipitated your psychosis on that occasion Dr McKenny was of the view that cannabis was also a precipitating factor. A report dated 31 October 2005 written by Dr McKenny, tendered by the Crown, makes that clear. In that report, Dr McKenny, who was not cross-examined, explained why he and Dr Symon had written to the South Australian Coroner in November 2001. He said that he had told you on multiple occasions, as had his staff, that your continued use of illicit substances was initiating and perpetuating episodes of mental illness. He said he told you that you had no underlying schizophrenia or bi-polar disorder. Dr McKenny said that you arrogantly dismissed this advice and conveyed no impression to him that you would change your behaviour. It was his and Dr Symon's fear of what might happen if you continued to take drugs that led them to write to the South Australian Coroner. He considered that you posed a significant risk to the community at large.
21 In his report Dr McKenny concurred with the other psychiatrists that the psychosis from which you were suffering at the time you committed these offences was induced by the consumption of cannabis. He concluded his report with the following opinion -
"What is unusual in the case of Mr Martin is the absence of any mental illness until he abused substances. What is also extraordinary is the number of admissions that Mr Martin had to hospital often requiring intensive care services under the influence of these illicit substances. He was advised, counselled and given treatment for his temporary illness yet he continued to return to these behaviours despite the obvious risks both to himself and others. The seriousness of his behaviour was explained to Mr Martin, yet he displayed a reckless regard for the repeated unambiguous medical advice made to him."
22 The fact that you have been psychosis-free since shortly after your arrest in July 2003 confirms the opinion of Dr McKenny as to the aetiology of your problem and demonstrates beyond doubt that had you not ingested illegal drugs shortly prior to committing these offences they would not have occurred and, in particular, Mr Turner would still be alive.
23 I have referred to your history as extensively as I have because your counsel submitted that you should be sentenced on the basis that you were suffering from a serious psychiatric condition at the time you committed these offences and that accordingly your sentence should be sensibly moderated as principles of general deterrence would have less application in your case than they might in others. [1] He said the fact that you were psychotic at the time you committed these offences lowered your moral culpability. This submission cannot be accepted. Whilst you were undoubtedly psychotic at the time you committed these offences that psychosis was induced by your voluntary ingestion of illegal drugs. Further, as the evidence of Dr McKenny demonstrates, you were well aware that your behaviour in taking those drugs exposed you to a risk of becoming psychotic such that you would be a danger to yourself or others. Your conduct was not only predictable but was, in effect, predicted by those treating you in Adelaide two or more years before these events occurred. Your failure to heed the warnings given to you so that you persisted in illegal drug taking, was a direct cause of your committing these offences. As such, the effect of that drug-taking namely your psychosis cannot be relied upon by you as a factor which ought to mitigate your punishment. Rather, in the circumstances of this case, the fact that you voluntarily took illegal drugs such that they caused you to become dangerously psychotic in circumstances where you knew or ought to have known that that was a likely result is an aggravating factor.[2] The principle which might permit the mitigation of condign punishment because of serious psychiatric illness at the time of the commission of an offence depends upon that illness being beyond the control of the person being sentenced. Here, the psychosis from which you suffered was induced by your own illegal act. Thus the principle contended for by your counsel has no application. Your moral culpability for the consequences of your actions is not lowered by reason of your having been psychotic at the time you performed them.
24 Your counsel has pointed out that you offered to plead guilty to manslaughter in respect of Mr Turner's death in November last year but that the Crown declined this offer. However, you conceded a manslaughter verdict on your trial and did not dispute the Crown evidence with respect to the way in which you drove the truck such that you killed Mr Turner and placed a number of other citizens in fear of their lives. The manslaughter concerned involved an unlawful and dangerous act. These matters will be taken into account in fixing the sentence for each of the offences of which you have been found guilty.
25 You have had a large number of appearances before South Australian courts since your first appearance in February 1989. They relate to driving offences, drug offences, public order offences and some relatively minor offences of violence. The dispositions in each case were relatively benign. They pale into insignificance when viewed against those offences for which you are now to be sentenced such that their only relevance now is that you are unable to rely upon an unblemished past record as a mitigating factor for sentencing purposes.
26 Your counsel has pointed to the fact that drug testing undertaken whilst you have been in prison suggests that you have desisted from any drug use in that environment. He submits that this together with your having undertaken some self awareness programmes in prison are significant pointers towards your capacity for rehabilitation which ought to be taken into account. They will be given such weight as is appropriate in the sentencing process.
27 Your counsel also relies upon the fact that for some of the period you have been in gaol, you have been confined to a protection unit for your own safety. You may be so confined in the future. This situation, which arises from circumstances which are irrelevant to this case, may mean that your time in prison will be more onerous than it might have been had you been able to serve your sentence wholly in a mainstream situation. This too will be taken into account in fixing an appropriate sentence.
28 A number of the psychiatrists who have assessed you for the purposes of this case have commented on your apparent remorse for what you have done and, in particular, for having been the cause of Mr Turner's death. Their evidence was not contested by the Crown and accordingly the fact that you are remorseful enures to your benefit both because it demonstrates at least some contrition for the crimes you have committed and it also points towards the possibility of rehabilitation.
29 Victim impact statements have been filed by Mr Turner's sister who, it might be noted, has attended every day or almost every day of the hearing of this proceeding. She attests to the loss she, and the rest of her family feels as a result of her brother's death. He was clearly much loved and his loss is a devastating blow to his family from which it will never recover. His sister described him as a man who spent his spare time doing work for the St Vincent de Paul Society. The Turner family's loss is the community's loss as well.
30 Two of those whose lives you endangered have also filed victim impact statements. They attest to the trauma your criminal behaviour caused them. The relevant and admissible parts of those statements have been taken into account in fixing your sentence.
31 The Court must consider questions of general and special deterrence, punishment, the protection of the community, the need to denounce conduct such as you have engaged in and your rehabilitation, if that is possible, in fixing appropriate sentences.
32 You must be sentenced in respect of each of the crimes of which you have been found guilty and those sentences calculated so as to determine a total effective sentence. In reaching the total effective sentence it is appropriate in this case, contrary to your counsel's primary submission, that there be some cumulation of those sentences imposed in respect of the conduct endangering life with the sentence for Mr Turner's manslaughter. That cumulation will, however, take into account that the whole episode was, in reality, part of one criminal escapade. It is not necessary, in the circumstances, that the sentence to be imposed in respect of stealing the truck be cumulated in the same way and accordingly that sentence will be concurrent with the sentence for manslaughter.
33 It is also the duty of the Court generally to fix a minimum term of imprisonment which you must serve before being eligible for parole. Every day of that term must be served in prison. However, having regard to the particular circumstance of your susceptibility to dangerous psychosis induced by the ingestion of drugs, it is appropriate, both for the better protection of the community and for your possible rehabilitation, to permit the possibility of a longer period of supervision after your release than might normally be the case. It is essential that every possible step be taken to ensure that you never get into the situation which led to the commission of those crimes again.
34 It is the sentence of the Court that on Count 1, the manslaughter of Raymond John Turner, you be imprisoned for 12 years; on Count 6, reckless conduct endangering the life of Ian Raymond Gloster, you be imprisoned for two years; on Count 9, reckless conduct endangering the life of Mark Andrew Webster, you be imprisoned for two years; on Count 10, reckless conduct endangering the life of Greg Strawhorn, you be imprisoned for two years; Count 11, reckless conduct endangering the life of Carissa Foster, you be imprisoned for two years; and Count 13, the theft of the Nissan tip-truck, you be imprisoned for one year.
35 It is further ordered that six months of each of the terms of imprisonment imposed in respect of Count 6, 9, 10 and 11, be served cumulatively on the sentence imposed in respect of Count one, thus making a total effective sentence of 14 years' imprisonment. It is further ordered that you serve a minimum of 10 years before being eligible for parole.
36 I declare that a period of 897 days has already been served in respect of this sentence and direct that this declaration and its effect be entered in the records of the Court.
[1] Relying upon cases such as R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 and R v Izzard [2003] VSCA 152; (2003) 7 VR 480.
[2] See R v Coleman (1990) 19 NSWLR 467 per Hunt J; R v Jerrard (1991) 56 ACrimR 297 at 301 per Finlay J; R v Redenbach (1991) 52 ACrimR 95 and R v Tucker and Lewis (1989) 43 ACrimR 377 at 379.
R
Martin [2005] VSC 497
(2003) 7 VR 480
(1990) 19 NSWLR 467