R v Settree

Supreme Court of NSW|2016-08-04|Before: Campbell J

Solicitors: NSW Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2014/357855

judgment

The accused, Scott Settree has pleaded not guilty to both counts on the indictment that, at 8 pm on 3 December 2014 he murdered his parents, Margaret Settree and Donald Ian Settree. An election under s 132(1) Criminal Procedure Act 1986 (NSW) was made on 26 July 2016. This election was consented to by the Crown on the same date, and the orders providing for an extension of time to make the election and for a judge alone hearing were made on 27 July 2016: R v Settree [2016] NSWSC 1028.

The Accused's formal admissions under s 184 Evidence Act

There is no real dispute as to the facts of the case. Both Counsel for the defence Eric Wilson SC and Crown Prosecutor, Eric Balodis of counsel, submit that the defence of mental illness is made out. Additionally, at the commencement of the trial Mr Settree made a number of formal admissions pursuant to s 184 Evidence Act 1995 (NSW). These admissions were contained in a document dated 27 July 2016. Having satisfied myself as to the requirements of subs (2), I admitted the document into evidence as Exhibit 1. I have set out the admissions in full in the next paragraph. Mr Settree admits that he shot his parents deliberately; notwithstanding his mental illness defence, with the intention of killing them; and that they died from the gunshot wounds he inflicted.
The admissions in full are as follows: "On the 27th of July 2016, the accused, SCOTT SETTREE, on the advice of his counsel, makes the following formal admissions: 1. The deceased, Margaret Settree, died on the 3rd December 2014. 2. The deceased, Donald Ian Settree died on the 3rd December 2014. 3. Both of the deceased died as a result of injuries sustained when they were shot at and struck by projectiles discharged from a shot gun. 4. The death of Margaret Settree was caused by her being shot once and struck by shot gun projectiles on the left side of her neck at 45 Bourke Street Cobar New South Wales. 5. The death of Donald Ian Settree was caused by him being shot twice and struck by the shot gun projectiles on the left side of his chest and the right side of his head at 45 Bourke Street Cobar New South Wales. 6. I Scott Settree state that I caused the death of Margaret Settree by discharging on one occasion a loaded shot gun at her. 7. I admit that at the time I fired the loaded shot gun at Margaret Settree it was my intention to kill Margaret Settree. 8. I Scott Setttree stat that I caused the death of Donald Ian Settree by discharging a loaded shot gun at him on two occasions. 9. I admit that at the time I fried the loaded shot gun on two occasions at Donald Settree it was my intention to kill Donald Ian Settree."
Subject to the mental illness defence, these admissions would be sufficient to justify Mr Settree's conviction for each murder. It follows that the only issue for determination is whether Mr Settree has that mental illness defence available.

Summary of events of 3 December 2014

The facts I am about to narrate are not disputed. Mr Settree shot his mother and then his father in the home he shared with them in Cobar at about 8.30 pm on 3 December 2014. The shootings seem to have been precipitated by a minor domestic disagreement of the type most people would be able to brush off, even allowing for the resentment that can build up in family relationships over grievances perceived to be unaddressed. This disagreement was about Mr Settree drinking a bottle of his father's wine without permission. This domestic offence occurred the previous evening. When his father remonstrated with him about it on the evening of 3 December 2014, Mr Settree became angry, left the house and went to the bank, where he withdrew $40, being the value of the wine, at 8.10 pm. He returned home still clearly angry and said to his father, "there's your $40 stick it up your arse". Mr Settree then started to throttle his father, but promptly released his grip, saying "You're not worth it". Ian (as he preferred) Settree complained to his wife, Margaret Settree, who then told Mr Settree to "get out of my house, go, pack your things and get out".
The accused went to his bedroom where he obtained his pump action shotgun from his cupboard. He carried the gun from the bedroom. When he reached the threshold, he saw his mother standing in the lounge room, and shot her in the neck. He later told police that he experience a sensation of relief. He reloaded the weapon by its pump-action and approached his father. Mr Ian Settree screamed and put his hands up, I infer, indicating "don't shoot". But his son raised the gun and shot his father twice, in the chest and head. The accused told investigating police that once again he felt a feeling of relief and release.
After the shootings the accused went back to the local hotel where he had been drinking earlier in accordance with his normal routine. He must have arrived not long after 8.30 pm. He sat in a different part of the bar from usual. The publican, Ashleigh Bellotti, a retired police officer, served him a schooner of beer. The accused said to him, "Ash, Ash, I have to tell you something... just done the most stupid thing in my life". After further inquiry by Mr Bellotti, the accused told him that he had shot his parents. Mr Bellotti then noticed bloodstains on the trousers of the accused; he informed him that he was going to call the police and asked him where the weapon was. The accused told him that it was on the kitchen table.
While waiting for the police to arrive, the accused told Bellotti how he had used the shotgun: "I walked into my bedroom, pulled the gun out of my closet, walked back into mum and dad, shot mum in the neck and shot dad twice." The accused was subsequently arrested and taken to Cobar Police Station.
The police found Margaret Settree on the floor in the lounge room, with a neck wound, and Ian Settree in the hallway on the floor, similarly in a pool of blood. Both were deceased. A pump action shot gun was found on the dining room table.
Both expert psychiatrists Dr Samuels and Dr Nielssen are of the opinion that the accused at the time could not think rationally about his conduct due to a disease of the mind such that he could not determine right from wrong.

General legal principles

Section 133 Criminal Procedure Act prescribes my duties in a criminal trial without a jury. The section requires me to include in my judgment the principles of law and findings of fact I have relied on in reaching my decision. The section also requires me to take into account any warning which, in the circumstances of the case at hand, would usually be given to a jury.
I bear in mind that I have the responsibility of identifying the real issues for decision. It is necessary for me to state only so much of the law as is relevant to those issues: Alford v Magee (1952) 85 CLR 437 at 466.
The starting point, and fundamental rule, as in any criminal trial, is that Mr Settree is presumed to be innocent. It is relevant to record, given his plea, that he is also presumed to be sane. The presumption of innocence is rebutted if, and only if, the Crown proves the essential elements of the charge beyond reasonable doubt. It is for the accused to rebut the presumption of sanity by establishing his mental illness defence on the balance of probabilities, a much less exacting standard of proof.
Particular considerations as to the proper analysis to be adopted apply to this case because Mr Settree has raised mental illness as a defence: Hawkins v The Queen [1994] HCA 28; 179 CLR 500; R v Minani [2005] NSWCCA 226; 63 NSWLR 490 at [32]. Those considerations relate to the order in which the issues are required to be approached. As Mr Wilson SC, who appears for Mr Settree, and the learned Crown Prosecutor Mr Balodis accepts, the better view on the authorities is that the issues are to be approached in the order which I will now set out.
The first issue is whether the shooting of Margaret and Ian Settree by the accused with the shotgun were deliberate acts. Mental illness is irrelevant at this stage.
There is no issue that the actions of the accused against his mother and father were willed and voluntary; he has admitted this (Exhibit 1). Neither counsel submit that I should find otherwise, and indeed the nature of the injuries could not support any other conclusion.
The second issue is whether Mr Settree is criminally responsible for the consequences of his actions. This involves resolution of the mental illness defence. If I am not persuaded that the mental illness defence is available it will be necessary to consider the partial defence of substantial abnormality of the mind.
The mental illness defence is governed by the Mental Health (Forensic Provisions) Act 1990 (NSW). Section 38 provides for a "special verdict" if the accused person is not guilty by reason of mental illness. This is a third category of available verdict in addition to verdicts of "guilty" or "not guilty". It is not the same as an acquittal. The legal consequences which follow a special verdict "are quite different from those which follow a plain verdict of not guilty on the ground that [Mr Settree] did not do the things charged" (The King v Porter [1933] HCA 1; 55 CLR 182 at 185).
If I return a special verdict, I am empowered to order that Mr Settree be detained "in such place and in such manner" as I think fit "until released by due process of law" (s 39 of the Act). I am not authorised to release Mr Settree into the community unless I am satisfied that his safety, or the safety of any member of the public will not be seriously endangered by his release (s 39). A decision that he be detained in custody means that he will be a forensic patient under the supervision of the Mental Health Review Tribunal, which will review his case every six months and make the necessary orders for his continued detention, care and appropriate treatment. The Mental Health Review Tribunal is presided over by a senior lawyer who may be a retired judicial officer. It has two other members, one of whom is a psychiatrist and the other a respected member of the community suited to the task by reason of qualification or experience.
The Tribunal may not release Mr Settree unless it is satisfied as required by law about his safety and the safety of members of the public. And it may only do so after it has given the Minister for Health and the Attorney General prior opportunity to make submissions about his possible release. The Tribunal will be bound to review Mr Settree's case, at least every six months. Importantly, in this case, whilst under its supervision, the Tribunal may make orders for Mr Settree's continued detention, care or treatment in a hospital or a prison.
I emphasise that the return of a special verdict will not mean that Mr Settree has not perpetrated what is the greatest wrong that may be committed according to the ordinary standards adopted by reasonable people; rather the law does not attribute criminal responsibility to him for it by reason only of his mental illness.
Not every case of mental illness is sufficient to satisfy the requirements of the mental illness defence absolving a person from criminal responsibility. Everyone would regard murder as a heinous crime. Everyone would regard killing your mother and your father as heinous and unnatural. However, because of the presumption of sanity, I may not reason from this latter consideration that because the accused committed such an unnatural act, he must have been mentally ill. As explained by Dixon J (as the Chief Justice then was) as long ago as 1933 (in Porter at 187): "… a great number of [the] people who come into a Criminal Court are abnormal. They would not be there if they were the normal type of average everyday people. Many of them are very peculiar in their disposition and peculiarly tempered…. Nevertheless, they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect of punishment. It would be very absurd if the law were to withdraw that check on the ground that they were somewhat different from their fellow creatures in mental make-up or texture at the very moment when the check is most needed." His Honour went on to point out: "(The criminal law) attempt[s] to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like."
As I say, the standard of proof of mental illness is less exacting than proof beyond reasonable doubt, but, in a given case, the necessary elements of the defence may not be easily satisfied. The legal requirements of the defence have been established since 1843 (R v McNaughten (1843) 8 ER 718) in the following terms: "… to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong."
This was further discussed, again by Dixon J, in Porter at 189 - 190: "The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in the sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people." Keeping these principles in mind, it is necessary for me to focus on that short period of time during which the accused shot and killed, his parents, Margaret Settree and Ian Settree to resolve this issue, alongside the expert psychiatric evidence as to his mental health. But questions of mental health do not emerge in a vacuum, so it is necessary to also consider his past and subsequent medical history which may shed light on his condition at the time of the shootings. At the very least these matters provide context.
I turn now to the issues of fact.

Issue 1 - Deliberate act

I am satisfied beyond reasonable doubt that the shooting of Margaret Settree and Ian Settree were deliberate acts of the accused which caused their deaths. I come to this conclusion having considering the formal admissions made by the accused; the evidence of the cause and manner of death; the accused's conduct after the shooting; and his statements to the police after the event.
I was particularly bolstered in this conclusion by the evidence of Mr Bellotti who was the first person to speak to the accused following the shooting; the police officers who were first at the scene of the crime and the evidence of the psychiatrists as to what the accused told them as to what occurred.

Issue 2 - Mental illness defence

I turn now to the second issue of whether I am satisfied on the balance of probabilities that the accused has made out the mental illness defence. The prosecution and the defence each rely upon the opinion of a respected, experienced, and eminent forensic psychiatrist. The defence called Associate Professor Anthony Samuels and the Prosecution, Dr Olav Nielssen. They agree that at the time of the shootings the accused was suffering from a disease of the mind, probably paranoid schizophrenia (Dr Nielssen does not prefer the term "paranoid") which caused a defect of his mind.
Both experts considered, adapting the language of Dixon J (Porter at 189 - 190), that he maintained the capacity to know the nature and quality of his actions. Professor Samuels's view is that because of his defect of reasoning, he felt justified about the actions he took. I infer that this sense of justification amounts to an inability to reason about whether what he was doing was wrong, because of the disordered state of his mind which results from the psychiatric illness.
Dr Nielssen's view is that because of his disease, the accused was "not able to appreciate that his actions in shooting his parents were morally wrong". Dr Nielssen said, "He was not able to reason with a sense of composure about the influence of his delusional thinking on his perception of events": (Report dated 19/12/15 page 15).
As can be seen, the psychiatric evidence, in terms of the opinion of each expert on the facts as agreed upon by the parties, supports the finding that the mental illness defence has been established. Both experts have been involved in the case for some time. It is fair to say that neither was, at least firmly, of the view that the accused had the mental illness defence available to him initially. But their opinions in that regard have firmed-up by them taking opportunity afforded them to consider a wide range of material made available to them by the parties, including statements by family members and other associates of the accused about their observations of the accused's behaviour over many years; contemporaneous medical records compiled, albeit spasmodically, over more than 15 years (including the records of Justice Health since his incarceration); the accused's personal journals and other documents prepared in his own hand; and the recordings of his police interviews.
As Dr Nielssen said in his second report 26 July 2015 at page 3, "After reviewing the additional material, I am now more firmly of the opinion that Mr Settree has a defence of mental illness open to him for these offences. His chronic schizophrenic illness is a disease of the brain that produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. At the time of offences he had a defect of reason in the form of the delusional beliefs that his parents had conspired to ruin his life, as well as other bizarre delusions that confirm his inability to critically review his own thinking. He was probably aware of the nature and quality of his actions in fatally shooting his parents. However, after considering the further material, I now believe that at the time of the offences, Mr Settree was deprived of the ability to recognise that his actions were morally wrong which is evident in the beliefs that he expressed about his parents and his initial lack of remorse."
That the final opinions of the experts have been arrived at gradually over a relatively long period of time and with the benefit of reference to a considerable body of other evidence, to my mind, enhances, rather than detracts from, their persuasiveness.
However, I bear in mind that the value of expert opinion is very much dependent upon whether the facts assumed for the purpose of expressing the opinion are sufficiently like the facts as I find them to be. I am not obliged to accept the opinion of any expert. I am entitled to reject the evidence, especially where the facts upon which the opinion is based do not accord with the facts as I find them to be.
It is very important to bear in mind, however that the expert evidence is not challenged by either party. Both parties propound it. Notwithstanding this, it is for me to decide whether I am actually satisfied on the balance of probabilities that Mr Settree has made out the mental illness defence.
In undertaking my review of the evidence I have borne in mind that if it is shown that the two doctors not only come to the same conclusion, but provide like reasons for it which "clearly lead to that conclusion … the right decision … must be that the defence has been made out" (R v Jenkins (1963) 64 SR (NSW) 20 at 31 by Walsh J).
The reliability of the expert psychiatric evidence very often depends, at least in substantial part, upon the validity of the assumptions they have made about Mr Settree's medical history, and the reliability of the accounts he gave them.
The accused has voluntarily provided an account of the events surrounding his alleged offending to the expert witnesses. As he has not given evidence, it is appropriate that I warn, or caution, myself that hearsay evidence is often unreliable perhaps especially when it consists of out of court statements by a person accused of a serious crime, who may therefore have a motive for proffering self-serving statements of an exculpatory type. Frankly, what the accused has said in this case is not exculpatory. However, that Mr Settree cannot be cross-examined on those histories could affect the weight which might be accorded them. I record however that both counsel accept that they are reliable. Nonetheless the statements made are admissible because they are the foundation, or part of the foundation, of the opinions expressed by Professor Samuels and Dr Neilssen. Being admissible for that purpose, I am entitled to rely upon them, if I am otherwise persuaded as to their reliability, as evidence of the truth as an exception to the hearsay rule under s 60 Evidence Act 1995 (NSW).
Whilst I am not bound to accept these out of court statements, as they are consistent with the other evidence I have received, and the experts regard what the accused told them as consistent with his disease, I am satisfied that his account is probably reliable and should be accepted.

The accused's background

The accused is a 48 year old man, who at the time of the alleged offences was living with his parents in Cobar. His early life is unremarkable in many ways. He grew up with his parents and older sister, Wendy Robinson, in Nyngan, and later in Cobar. He left school in year 10 before taking up an apprenticeship in the mines which he did not complete. It is not to my mind irrelevant that the accused has struggled to maintain continuous employment. At different times he worked at the petrol station owned by his parents, as a driller in a local copper mine, a musician and as a carer for his children while his then wife worked as a teacher. He had been working for the local council for a period but left that work due to his poor mental health in about July 2013. According to the psychiatric evidence which I accept, his difficulty holding down jobs may be due to the social-dysfunction caused by his underlying disease of schizophrenia.
The accused married Lyn in his early twenties. She was also a musician as well as a schoolteacher. They have two children from their marriage. Following the breakdown of their marriage, the children remained with their mother who subsequently remarried. The accused initially moved back in with his parents after his separation from his wife, but later moved and lived elsewhere in Cobar for two to three years. He seems not to have been able to function living independently. He returned to living at his parents' home, who supported him financially and with domestic tasks.
The evidence of Wendy Robinson suggests that the accused has a history of violence and threats to his family, particularly towards his mother. Despite this Margaret Settree, by the accounts of close family and friends, was always supportive of her son, procuring references on occasions when he ran foul of the law. She did this for him even when he was charged with assaulting her. His father, according to Wendy Robinson and Ashley Bellotti, thought that Margaret Settree was too indulgent of the accused, and wanted him to be more self-sufficient. In the weeks prior to his death, Ian harboured fears that the accused would commit suicide.
The accused was also physically violent towards his wife when they were living together, particularly in 1999 when the accused's methylamphetamine use led to a florid psychosis. At one point, he pointed a gun at the head of his wife after she had persisting in challenging him to seek treatment because of his obviously delusional beliefs. He also threatened violence to his sister Wendy Robinson, her former husband and their son, and damaged their personal property. Viewed through the prism of the diagnosis of schizophrenia, this violence is probably a manifestation of the disease. The experts explained the nature of his disease was generally characterised by delusions which they defined as fixed false beliefs adhered to in the face of compelling contrary evidence. The auditory and visual hallucinations commonly experienced by other sufferers of the disease are not symptoms currently experienced by the accused. Dr Nielssen said that about 25% of delusions experienced by sufferers of schizophrenia were "grievance delusions" where the patient harboured unreasonable and baseless resentment about how others treated him.
Understandably, without the benefit of the expert diagnosis one might understand these outbursts as evidence only of a violent disposition which might, of itself, escalate into dangerous behaviour without any underlying pathology. With the benefit of the expert's opinion, I am satisfied that these outbursts were a manifestation of the disease resulting from the challenge by friends and family, unwittingly, of his psychotic delusional belief systems.
I interpolate that this interpretation is supported by a review of his longitudinal history as a whole, rather than examining individual incidents piecemeal.

The accused's mental health history prior to his incarceration

The accused's first interaction with mental health services was in August 1999 when he was 31 years of age. Notes from the Lismore Base Hospital from 1999 and 2000 record a provisional diagnosis of underlying psychosis or drug-induced psychosis. He had been using cannabis and methamphetamine over a four month period prior to August 1999, when he reported symptoms of paranoia, delusional thinking together with visual and auditory hallucinations. Initially he refused to take the prescribed dosage of Risperidone, believing it to be heroin and an attempt to poison him. Aspects of the history recorded at Lismore are very significant. He told the mental health worker he saw that he had an episode of psychosis with paranoid features three years previously after using illegal drugs, but it resolved after two to three weeks. His presentation at Lismore was brought about by a bad trip of speed ten weeks earlier. It is very significant that the symptoms, not only persisted, but worsened after he ceased using the drug. His symptoms included frank paranoia involving a conviction that people "were interfering with him". That people had intruded his house at night, and had "bugged" the home, the phone and the family car. He was so paranoid that he was wandering the property, armed, at night to ward off these non-existent intruders.
Dr Nielssen explained that the first significant onset of psychotic symptoms in sufferers of schizophrenia is often precipitated by drugs, most commonly cannabis, but also stimulants. He regarded these phenomena as drug exposed, rather than induced, schizophrenia. In the light of this evidence, it seems likely that the accused's illness became manifest at around the age of 30.
While by 10 August 1999 he had apparently settled into his medication regime, records from January 2000 indicate that he had not wholly recovered. His wife Lyn reported to the hospital that he was again psychotic and paranoid, such that she left their home with their children and went to stay with her parents in Dubbo, I infer for her safety and that of their children. It is notable that his parents did their best to help him at this time, a matter he does seem to have appreciated.
This paranoid thinking about being poisoned or surreptitiously given heroin is a persistent delusion of the accused. The fear of being poisoned, according to Dr Samuels, is a typical example of paranoia experienced by schizophrenic sufferers. The accused recorded this paranoid thinking in 2009 in a journal he kept while at the Dooralong rehabilitation clinic for his alcohol abuse. In 2014, he recounted to psychologist Angela Webb his experiences as a small child when his uncle injected him with heroin, with his parents failing to protect him from this abuse. The niece of the accused also witnessed the accused at the house of his parents, smash a plate of food prepared and left for him by his mother, accusing her of attempting to poison him.
The accused spent about 8 months in the Dooralong Transformation Centre until 1 July 2009. He left without completing the course in circumstances which may be significant. He had formed an infatuation with a female counsellor and apparently convinced himself that she loved him. I infer that when the inappropriateness of his beliefs about the counsellor were pointed out to him he became very abusive, using the most offensive language and quit the course. This behaviour typifies the response others have noticed where his delusions about the women he desires are challenged.
The case notes from Dooralong are instructive in as much as he first disclosed his delusion about witnessing murders perpetrated by his uncle when he was a toddler at this time. Part of the course involved keeping a journal and writing an autobiography. His journal discloses in great and intimate detail the bizarre delusion about the film star, Penelope Cruz. When I read his writings I formed the impression that they were the product of a disturbed mind.
Professor Samuels and Dr Nielssen connect this intense resentment, conflict and aggression towards his parents to some of the accused's other delusions, and are of the opinion that it was their challenging of his delusional belief system which increased the very negative dynamic in their relationship; specifically, his delusion that he was in romantic relationship with Penelope Cruz, and at times other famous female performers, including Olivia Newton-John and Jennifer Lopez. Prior to entering Dooralong in 2008, he had told some people about his relationship with Cruz, which he said began as a friendship when they were both three years old. He told his wife Lyn about it in letters, and according to the evidence of his son Adam, this was a cause of friction between the accused and his father, Ian Settree. The accused wrote in a note in May 2008, ostensibly in relation to a conversation they had where he had disclosed his delusions: " After our talk today (13/5/08) I felt horribly sick with the realisation that not only were you unaware of all this but so is Wendy. That hurt a lot. No wonder I don't trust you. She along with mum think I'm highly deluded… Still! After nine years. I've got to the point whereupon I don't care about the circumstances of putting this in writing. 9 years is a long time to hold anything in, let alone something this big. I totally understand why you have not seen or accepted all this, but it's time to put blind faith in your son." Doubtless the family hoped that the long residential course of rehabilitation by addressing his substance abuse would cure him of whatever else it was that was ailing him.
While his mental illness in 1999 appeared to be instigated by the accused's use of methamphetamine, his delusions, paranoia and intense resentment did not abate with his desistance from illicit substance use and alcohol consumption.
Both psychiatrists report that his delusions continued while in custody, and even after commencing antipsychotic medication. While the accused acknowledged to Dr Samuels that some of his psychotic experiences in 1999-2000 were due to speed, he did not similarly recognise that his relationship with Cruz and experience playing music with Olivia-Newton John were delusions (Dr Samuels Report dated 6 August 2015 at p 33-34). Indeed he remained resentful when the truth of these beliefs was challenged.
Dr Nielssen in particular he considered the possibility that the accused's stated beliefs of relationships with famous women from the arts where merely fantasies rather than delusions. But discarded that possibility having regard especially to the accused's adherence to these beliefs which could not possibly be true. It was also evident that he greatly resented being challenged about these beliefs, in turn giving rise, as I have said, to what Dr Nielssen described as "grievance delusions".
I have also taken into account, given that the object of these delusions were famous entertainers known around the world, they have about them the flavour of baseless grandiose ideas, characteristic of the disease. I would put the compelling evidence about him stalking certain women living in Cobar in the same category. I accept that it is possible that this was merely antisocial behaviour. But again, considered in context, it fits in with the other evidence about his interconnected delusional belief system. He seemed to genuinely believe that the women loved him, and that it was inevitable that they would respond positively to his advances, unwanted as they in truth were. The element of grandiosity is that he believed that everyone loved him and that there was something wrong with you if you didn't; rejection feeding into his well-overblown sense of grievance.
This attitude that everybody loved him is most evident in the autobiography he wrote as "Step 4" of his treatment program at Dooralong in 2009. By then he had been sober and free of drugs for several months but his writings at that time thoroughly demonstrate the persistence of these grandiose delusions.
As Dr Nielssen explained, grandiosity is a central part of the disease, even in its paranoid aspects: the sufferer thinks "I must be important, the Canadian Secret Service are in touch with me about my nephew's conduct in Canada"; or, "I must be important because some authority or other is bugging my house and my phone." The sufferer feels important even if the paranoia is unsettling.
I am also well satisfied that the grievances he felt about his parents treatment of him is utterly delusional. The truth, which is well established, on the whole of the evidence before me, is that Margaret and Ian Settree were respectable, hardworking, decent people, well liked and admired in their local community. Many of the things the accused has said or written about in the course of previous treatment, whilst in custody and before could not possibly be true. I will not detail his denigration of them in this judgment, out of respect for their memory. The truth of the matter is that they were loving, caring, and protective parents who always went out of their way to look after him even when his psychotic behaviour must have been extremely trying and threatening to them. His contrary beliefs are delusional.
He told Dr Samuels (at page 35) that because he was depressed, "this gave [my parents] power over me, strength to control me. They liked me living with them under their banner; hat; rules of the house…I felt belittled by that" This was a delusional subservience from which he felt the urge to free himself.
The accused exhibited further examples of delusional thinking and grandiose ideas about himself that further increased his conflict with certain family members as sometimes manifested in threatening and violent behaviour towards them. He told his niece Demi Robinson that he was involved with Bikies (Exhibit A, tab 23, [21]) and also his son Adam Settree (Exhibit A, tab 20).On another occasion, he used his supposed position as number 2 in the Rebel Bikie Gang to his nephew Jaye Robinson to threaten him, after Jaye demanded he make reparations for the damage the accused had done to Jaye's home after being excluded from Christmas dinner one year (Exhibit A, tab 34).

The accused's mental illness

As my analysis demonstrates the accused has had significant mental health problems since the late 1990s. My strong impression from the evidence is that they continued throughout albeit without any real evidence of the florid symptoms that had led to his treatment at Lismore Hospital in 1999. This apparently is not unusual. Dr Samuels identified his condition as a particular form of schizophrenia that was not characterised by florid psychosis and prominent auditory hallucinations: "And in fact they classify into bizarre and non-bizarre and the more sort of disorganised your psychotic illness is the more they tend to be bizarre. But in fact his mental status always quite organised and contained and the delusions were quite circumscribed. And as far as I know he never apart from perhaps when he was using amphetamines wasn't exhibiting florid thought disorder, marked visual hallucinations or auditory hallucinations. Seemed to be quite circumscribed and those more non-bizarre delusions are more in keeping with sort of the paranoid delusional disorder sort of spectrum schizophrenia as opposed to the more epiphrenic disorganised type of schizophrenia." (38.35T)
I accept the evidence that untreated as it was for so long his condition would have worsened and his complex delusional thought patterns would have become more entrenched and pervasive.
At paragraph 42 I remarked that he resigned from a job he had in the parks and gardens section of the local council and expressed the view that this was probably part of his social dysfunction due to his schizophrenia. He was apparently employed as the urban team supervisor. His medical records indicate that he was treated for work related stress and he saw a psychologist, a Ms Webb, for the first time on 27 July 2013. He gave her a history of severe depression for which he had received treatment from a local GP. He continued under Ms Webb's care, occasionally being reviewed by a psychiatrist, up until the time of the shootings. Dr Nielssen expressed the view that the condition may have been a manifestation of his schizophrenia or an incidental co-morbidity. Looking at all of the evidence I am persuaded that it was the former, and although I do not criticise the health professionals involved, I am of the view that they missed this diagnosis. In particular, as Dr Nielssen pointed out, one cannot criticise the psychologist. She is not trained to make diagnoses.
Ms Webb administered a treatment known as Eye Movement Desensitization and Reprocessing Therapy. I don't pretend to understand this treatment nor is it explained in the evidence. During this treatment the accused disclosed some of his delusions including those relating to having witnessed murders as a toddler and his delusions about his parents. As I have said, the significance of these was missed. But he certainly told Ms Webb about his feelings of very strong resentment towards his parents and in particular his father.
Dr Hugh, psychiatrist, examined him by AVL in November 2014 to review the depression medication prescribed by his local doctor. He also elicited the delusions about being a witness to murder. On that one interview Dr Hugh was uncertain about whether these "memories" were delusions. On mental state examination over the AVL he found no evidence of psychotic thinking, delusions or hallucinations. Dr Hugh however intended to re-examine the accused to "get a bit more clarity about the veracity of his memories and their meaning." Events intervened to deny him this opportunity.

The accused's condition on 3 December 2014

The evidence indicates following the review of his medication by Dr Hugh the accused's mood deteriorated. In particular he did not cope well off Endep which he had used to help with sleep and he complained of increased anxiety. I interpolate that what was described by those treating him as anxiety may well have been the agitation that schizophrenia sufferers often complain of. That he had a made an appointment to see his doctor on 3 December says something significant about his mental state at that time.
As I have said, there is no dispute as to the course of events on 3 December 2014. In his account to the police, the accused said it was an otherwise normal day. For reasons that are not explained, he attended his GP's surgery to cancel his medical appointment. The receptionist noted that he appeared flustered or agitated at the time. Feeling slightly anxious, he later went, at about 4 pm, to the Great Western Hotel, where he drank his usual nine schooners of full strength beer over a period of about ninety minutes or so. He was observed by the publican to be dejected and withdrawn in manner, but did not appear particularly intoxicated, which is corroborated by his blood alcohol reading giving rise to an estimate of between 0.13 % and 0.17 % when he shot his parents. The overwhelming evidence is that his drinking habits were such that he had developed a very high degree of tolerance to the effects of alcohol. He probably felt little affected at the time of the shootings. Indeed the evidence was that given his alcohol abuse, it was "necessary" for him to maintain his level of consumption to avoid severe withdrawal symptoms. He left the hotel in the early evening at around 6.15 - 6.30 pm and went home.
I have dealt in detail the surrounding circumstances of the death of Margaret and Ian Settree and it is unnecessary to repeat them here. However the psychiatrists found aspects of his behaviour in the aftermath significant to their understanding of his mental state at the time of the shooting. Having killed his parents he acted in a strangely detached, calm manner. He turned off the oven that was reheating pizzas and secured the dogs. He left the gun on the table. He considered contacting the police but the decided against it because he was fearful that they would shoot him. For this reason he decided to return to the hotel and speak to the publican Mr Belotti.
When interviewed by police, after the shooting and subsequently he remained strangely detached. He did not show any emotion one way or another, as the psychiatrists would have expected of a person of normal sensibilities who had committed such a dreadful act. The significant impression the psychiatrists formed from watching the recordings of the interviews was, although he may have known that killing his parents was against the law he felt justified in doing it because of what he perceived to be their mistreatment of him. That is to say, he was at the time of the shooting labouring under an active grievance delusion directed at his parents.

Justice Health Records and post incarceration diagnosis

Notwithstanding previous contact with mental health professionals, it was not until he was taken into custody for these alleged offences that his current diagnosis was gradually reached.
He was treated in custody by a Dr Hearps, psychiatrist, who examined him on 13 May 2015, 3 June 2015 and 8 June 2016. Dr Hearps received from the accused a more complete history of his delusions, and developed the diagnosis of schizophrenia for the first time. According to his records, the delusional thinking of the accused may date-back to when he was 14 years old, predating his psychotic episodes in 1999.
The accused has continued to receive treatment in custody but I have formed the impression that his condition is not yet under control. He does seem to have gained further insight into his difficulties but remains resentful if challenged about his delusional beliefs. Given how entrenched his untreated condition was at the time of the shootings, even with adequate treatment his prognosis must be, at best, uncertain.

Determination

This body of evidence actually persuades me on the balance of probabilities that, at the time he shot each of his parents, Margaret and Ian Settree, the accused at that time had an active delusion, forming part of his delusional belief system, which was symptomatic of his type of schizophrenia. This is undoubtedly a disease of the mind.
On the evidence of the experts, I accept that from the account given by Mr Settree of his perceptions when he shot his parents, which I accept as reliable, that he was then labouring under a delusional belief system which was symptomatic of his paranoid schizophrenia. I am satisfied when he killed each of his parents, the accused suffered from a disease of the mind giving rise to a defect of reason such that he did not know that what he was doing was wrong according to the accepted standards of ordinary members of the community. I find this because I am satisfied that his condition then was such as left him unable to reason about his actions and beliefs with even a moderate degree of sense and composure in the relevant sense because his capacity to do so was overborne by his grievance delusion about his parents oppression of him.
It follows from this finding that I will return a special verdicts that Scott Settree is not guilty of the murder of Margaret Settree and not guilty of the murder of Donald Ian Settree by reason of mental illness. This conclusion makes it unnecessary to consider the issue of intent or the alternative defence of substantial impairment.
In making this decision I wish to record that notwithstanding the agreement of the experts and Counsel that these are the proper verdicts on the evidence, I have given anxious consideration to the question whether raising the mental illness defence was a device on the part of the accused to avoid accepting responsibility for the heinous crime of murdering his parents and to avoid the condign punishment of a very long term of imprisonment which would have inevitably followed. I am satisfied that that alternative may be safely discarded. In coming to this conclusion I have borne in mind the legitimate interest of the criminal law in vindicating Margaret and Ian Settree and the legitimate interest of their family friends in the punishment of any person who may have been guilty of such a crime.
The criminal law does not treat the seriously mentally ill as criminally responsible for actions which would in others be unlawful, attracting severe punishment. It may have seemed to others that the accused's behaviour was at times that of a social misfit with a violent streak. However, having had the benefit of all of the evidence in the case which has resulted from the careful and thorough police investigation and the considered opinions of the experts, I am satisfied that the accused was at the time of the shooting, to use an out-of-date expression, criminally insane.
As I said at the outset, a special verdict is not the same as a verdict of not guilty. Mr Settree may not walk free from this court. It is apparent to me from the evidence I have received that his particular disease is a serious illness which is likely to remain resistant to treatment.
In these circumstances there is not the slightest question of it being appropriate to release Mr Settree into the community at this time. I am not satisfied that he does not present a danger to himself or to others. Indeed the evidence of Dr Samuels is that he remains a danger. Accordingly the effect of my verdict will be that Mr Settree will be committed to the long-term supervision of the Mental Health Review Tribunal. Pursuant to s 43(a) of the Act, the Tribunal may not release Mr Settree into the community unless and until it is satisfied that he will not seriously endanger any person including himself.

Orders

My orders are: 1. Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder of Margaret Settree by reason of mental illness; 2. Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder of Donald Ian Settree by reason of mental illness; 3. Under s 39 of the Act, Scott Settree is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law; 4. I direct the Registrar to notify the Minister for Health of these orders; 5. I direct the Registrar to notify the Mental Health Review Tribunal of my special verdict and of these orders. The Registrar is to provide the Tribunal with a copy of these reasons, my orders, the transcript of proceedings for 3rd August, 2016 and the reports of Drs Samuel and Nielssen.

Reasons for sentence on firearms charge

I will now deal with the firearms offence to which the accused pleaded guilty in the Local Court and for which he was committed to this Court to be sentenced. Notwithstanding what I have found to be his well-entrenched mental illness of some severity, I should record that Drs Samuel and Nielssen are both of the view that he is fit to plead and he has adhered to that plea of guilty in this Court.
I was initially concerned that there would be an inconsistency or incongruence between special verdicts of not guilty of murder by reason of mental illness for the murder charges, on the one hand, and guilty of the firearm charge, on the other. I felt this may have been especially so, as the particulars contained in the court attendance notice make clear that the offence of possessing the unauthorised prohibited twelve gauge pump action shotgun was committed at about the time of the shootings. It is the weapon the accused used to kill his parents.
Section 4 of the Firearms Act 1996 (NSW) defines possession of a firearm as including any case in which a person knowingly has custody of a firearm. There is no doubt that even in his disordered state of mind the accused knew he had the gun and where it was. But it seemed to me questionable whether he could reason that possessing the gun was wrong having regard to the everyday standards of reasonable people. There is no reason in law why the provisions of Pt 4 of the Mental Health (Forensic Provisions) Act 1986 (NSW) could not apply to an indictable firearms offence. Moreover, there is a factual and evidential basis which may be capable of engaging that legislation. The evidence clearly shows that his delusions are accompanied by significant paranoia which caused him to lash out at those who challenged his false beliefs. Dr Nielssen accepted that keeping a loaded gun was part of his paranoia. The accused told him that he kept it to protect himself from intruders. There were no intruders.
There was also evidence that in August 1999 when he did suffer florid psychosis that he wandered his property armed and discharging a firearm to ward off the delusional intruders.
Notwithstanding my legal reservations about the matter, I am persuaded I should accept the plea of guilty and pass sentence on the accused for this offence.
As I have said, he is fit to plead. There is no reason to suppose that he does not understand the ramifications of entering a plea of guilty for this offence. It is well recognised that people may decide to plead guilty for a variety of reasons even in circumstances where they may doubt their legal responsibility. The Court is entitled to act upon a plea of guilty proffered by a person competent to enter it. It seems to me, having regard to the arguments of counsel, that is the principle that I should give effect to in respect of this charge.
In any event, my powers in respect of the accused's plea are not unlimited and seem to be governed by ss 104, 105 and 107 of the Criminal Procedure Act 1986 (NSW). They appear to be limited to remitting the matter to the Local Court for the continuation of committal proceedings, dealing with the accused on his plea of guilty or ordering him to stand trial if he changes his plea, which he has not done. The only matter which gives rise to my doubt about the proper course of action is the possible availability of the mental illness defence for this charge. With the reservations I have stated I am prepared to accept what is the joint submission of counsel that the effect of the mental illness defence on this charge is not necessarily the same as on the murder charges.
The pump-action shot gun is clearly a dangerous weapon. Maintaining it in a loaded, easily accessible state enhanced its dangerousness. It is clear that he was in the habit of maintaining the gun in that state so that the particular offence charged is not an isolated, uncharacteristic incident. It would be an egregious breach of principle to factor into my assessment of the objective seriousness of the offending the consideration that the gun was used as a murder weapon as this would involve Di Simone error. I would assess the objective seriousness of this offending at somewhat below the mid-range.
The offence under s 7 of the Firearms Act as at December 2014 carried a maximum penalty of 14 years, and a standard non-parole period of three years. These considerations are important guideposts to the seriousness of offending of this type which I will bear firmly in mind.
The prevalence of firearms offences in the community is of significant concern. This brings considerations of general deterrence directly into play.
The accused pleaded guilty in the Local Court at the first available opportunity and I propose to discount the sentence I otherwise would have imposed by 25% for the utilitarian value of his plea. He has a previous criminal record but it is not long nor a particularly serious one. However the past commission of crimes of violence are relevant to the degree of leniency that might be extended. I bear in mind however that his mental illness may be relevant to past offending, at least since 1999, and that consideration may not have been obvious to the courts dealing with him since then.
His mental illness is obviously relevant for sentencing purposes as it reduces his suitability as a vehicle for the general deterrence otherwise called for in this case, and ameliorates the necessity to provide for specific deterrence as a factor in fixing the appropriate sentence. The evidence of Dr Samuels is that his schizophrenia makes him a danger to the public but that factor is less relevant for current sentencing purposes as it has been addressed in the orders I have pronounced under s 39 of the Mental Health (Forensic Provisions) Act.
In my judgment, bearing all the facts, matters and circumstances to which I have referred firmly in mind, the appropriate sentence for this offence and this offender is a fixed term of fulltime imprisonment of 18 months duration. Given the orders I have made already today, it is clearly appropriate that I refrain from making any order that may be taken as suggesting he is entitled to be released from custody. However given the special verdict it may now be seen that his past custody on remand has been in substance for this offending and I will back-date the commencement of the sentence accordingly.
Scott Settree, upon your plea of guilty I convict you of possessing an unauthorised prohibited firearm on 3 December 2014, contrary to the provisions of s 7(1) Firearms Act 1996 (NSW). I sentence you to a fixed term of fulltime imprisonment of 18 months duration, commencing on 3 December 2014 and expiring on 2 June 2016.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2016

Mental Health (Forensic Provisions) Act 1990(NSW)

Mental Health (Forensic Provisions) Act 1986(NSW)

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