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[2018] ACTSC 36
Supreme Court of the ACT
2018-02-28
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - PARTICULAR OFFENCES - Offences against the person - manslaughter on grounds of diminished responsibility - assessment of level of mental impairment - whether culpability reduced where level of mental impairment exceeds level required for availability of manslaughter verdict - whether culpability increased by offender's role in development of mental impairment through drug use - impact on culpability of troubled relationship between offender and victim.
Crimes Act 1900 (ACT) ss 14, 14(1), 14(2)
Crimes Act 1900 (NSW) ss 23A, 23A(4)
Regina v Derbin [2000] NSWCCA 361
R v Jennings [2005] NSWSC 789
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Storey [1998] 1 VR 359
R v Anu Singh [1999] ACTSC 32; (1999) 154 ACTR 62
R v Singh [1999] ACTSC 66; (1999) 154 ACTR 93
R v Navin [2016] ACTSC 109
R v Tumanko (1992) 64 A Crim R 149
R v De Souza (1997) 41 NSWLR 656
R v Potts [2001] NSWSC 753
R v Mabbott [2002] NSWSC 502
R v Gagalowicz [2005] NSWCCA 452
R v Antaky [2007] NSWSC 1047
R v Dowley [2009] NSWSC 722
R v Holloway [2013] NSWSC 218
R v McKnight (No. 4) [2014] NSWSC 1029
Catley v R [2014] NSWCCA 249
R v Jenbare [2016] NSWSC 1317
Ukropina v R [2016] NSWCCA 277
R v Hart (No 5) [2016] NSWSC 1612
R v Rogers [2017] ACTSC 67
Legal Aid ACT (Offender)
1. Gabriela Woutersz was tried in 2016 for the murder of her mother Cheryl Woutersz. After lengthy deliberations, the jury was unable to reach a verdict, and was discharged. A retrial was set down to begin on 21 August 2017.
2. In the first trial, Ms Woutersz pleaded not guilty by reason of mental impairment, and the question on which the jury was unable to reach agreement was, in general terms, whether her mental state at the time her mother was killed reflected a mental impairment for the purposes of the Criminal Code 2002 (ACT) or some other mental dysfunction brought on by use of illicit drugs.
3. Shortly before the second trial was due to begin, and in response to an approach by the defence, the Crown indicated that it would accept a plea of guilty to manslaughter on the grounds of diminished responsibility. Ms Woutersz was arraigned on 10 August 2017 and entered that plea, and the Crown accepted it in full satisfaction of the indictment.
(a) a drug-induced psychosis; or
(b) an underlying illness such as schizophrenia or schizoaffective disorder, possibly aggravated by drug use .
5. Although most of the non-expert evidence from the trial is unchallenged, and there is much commonality about relevant matters among the expert witnesses, there are some findings of fact, and some rulings about the relevance of certain matters, that need to be made for the purposes of sentencing.
(a) summarises the relevant evidence given at the trial (at [7] to [125] and [135] to [140] below) and a small amount of expert evidence provided since (at [126] to [134] below);
(b) determines the relevance of certain possible findings for sentencing (at [237] to [271] below); and
(c) sets out, and explains, the findings of fact that I have made for the purpose of sentencing Ms Woutersz (at [272] to [303] below).
7. The statement of facts in evidence before me (Exhibit A) summarises the evidence given in the murder trial. Having regard to my conclusions below about the issues that need to be determined for the purpose of sentencing Ms Woutersz, much of that material is of limited relevance, and only a brief summary is set out below. The evidence of the immediate circumstances of the killing, however, is referred to in more detail.
8. As already mentioned, the central issue in this matter is the significance of Ms Woutersz' drug use in the months and days leading up to the killing. There is mention of several drugs, including amphetamines generally, methamphetamine and methylamphetamine (both commonly referred to as "Ice"), Ecstasy (or MDMA), cannabis, and "Molly". It seems that Ice was the most significant drug being used by Ms Woutersz in the lead-up to the killing. In this judgment I use the specific terms used in relevant evidence, but in general discussion of the relevance of Ms Woutersz' use of such drugs, I refer simply to her drug use.
Now, in your experience with users of high levels of methamphetamine, do you see any - have you witnessed any - do you know of any changes - any behaviour with regard to the jaw or teeth - teeth grinding?---Yes, it's quite commonly recorded in dental journals the phenomenon of Meth Mouth so - and there's quite - - -
Meth Mouth?---Meth Mouth, yes.
Right?---And basically it just accelerates in tooth decay and very poor dental hygiene and conditions. Some of that may reflect lack of personal hygiene that is sometimes seen in very heavy meth users but there is also the effect of methamphetamine to dry out the mouth so there is a lack of saliva and that is thought to also contribute to Meth Mouth.
What about jaw clenching?---That is very common as well with meth and with the whole family of amphetamine stimulants in high dosage, you get clenching of the jaw.
And what causes that?---It's called bruxism. I'm not quite sure of the physiological mechanisms underlying that. I don't even know if there has been any studies of the pharmacological cause of bruxism.
But what is bruxism?---That is the clenching of the jaw - - -
Right?--- - - - and it is widely reported with methamphetamine and related drugs like ecstasy for example.
11. Professor Drummer also commented on bruxism, as follows:
Yes. Now, sir, involuntary jaw movements and the use of ice - well, I withdraw that. It's correct ... you would agree that people on ice often display signs of involuntary jaw movements, I think it's called bruxism, is - is that correct?---That's right, yes.
12. That is, bruxism may be an indicator of amphetamine or Ecstasy use. There was however no evidence of which I am aware about whether bruxism would be a symptom of immediate intoxication or may also be a symptom of some level of drug use in the past or recent past, or whether the effect more generally of amphetamines on the user's mouth lasts only during the period of acute intoxication or becomes chronic with repeated amphetamine use.
13. The Crown's submissions have at several points relied on the proposition that the use or possession of dummies may be an indication of amphetamine use (presumably on the basis that they are used by drug users who are experiencing bruxism, either for immediate relief from involuntary bruxism or its effects, or for protection of the jaws and teeth from the longer-term effects of bruxism). However, this proposition does not appear to have been the subject of any evidence in the trial.
14. Judges are of course as capable as others of researching matters using the internet; however, I am not aware that the concept of judicial notice can now be applied to any proposition that can be found on the internet.
15. In the current context, Ms Woutersz' possession and use of dummies was consistent with her undisputed significant use of amphetamines over some months before the killing. However, in the absence of evidence of the kind described at [13] above, I would not be willing to treat evidence of Ms Woutersz' use of a dummy as evidence of amphetamine use at any particular time identifiable from the timing of her dummy use. Importantly, this means that I do not accept the evidence referred to below of Ms Woutersz' use of dummies in the two or three days before the killing as evidence that she was using, or intoxicated by, amphetamines during those few days.
16. Ms Woutersz was born in 1991 and was raised in Canberra. She was a loving, caring and intelligent child who was good at school.
17. As a teenager, Ms Woutersz used Ecstasy from time to time. On one and perhaps two occasions when she was 18, Ms Woutersz, while looking in a mirror, told a friend, Laura Burke, that she could see the devil in the mirror.
18. On 8 January 2011, Ms Woutersz attended her sister's wedding, and her sister said that she seemed "normal". Not long after that Ms Woutersz went to the United States with Ms Burke. In New York she began using cannabis, and over time moved onto other drugs, including cocaine, methamphetamine, and "Molly", a concentrated form of MDMA or Ecstasy.
19. Ms Woutersz returned to the United States, and from February engaged in significant drug use, as described by several witnesses. In August she was admitted to a mental health facility (the Beth Israel Hospital), where she spent just over a week before being discharged with a diagnosis of "psychosis - NOS [not otherwise specified]" and with anti-psychotic medication (Risperidone 3 mg).
20. Shortly after her discharge Ms Woutersz returned to Australia, where various witnesses considered her to be acting strangely; Laura Burke described her as looking more "spaced out", and her sister said that "something in her personality was different". At some point Ms Woutersz returned to the United States briefly, but the timing is not clear. Keith Woutersz said that after her return to Australia, Ms Woutersz "was not the Gabriela we knew".
21. While she was in Australia, Ms Woutersz worked from time to time as a personal trainer.
22. Ms Woutersz continued working as a personal trainer. For about six months she lived with her uncle Steuart Woutersz and his wife; Steuart Woutersz described an incident when Ms Woutersz came into the house and was "completely different", and his wife described Ms Woutersz having a conversation with the TV.
23. Some other aspects of Ms Woutersz' life appear to have deteriorated to some extent.
24. On 4 October, Ms Woutersz drove away from a random breath test station. When later tracked down she recorded a low blood alcohol reading, but was taken into custody, where a mental health worker recorded that she presented with odd behaviour and was making strange statements.
25. On 26 October, Ms Woutersz ran a red light and crashed into another car, but again recorded a low blood alcohol reading.
26. Ms Woutersz' family were concerned about Ms Woutersz' drug use, especially after finding items in Ms Woutersz' bedroom that they associated with drug use.
27. Ms Woutersz was admitted to a mental health facility at Calvary Hospital in the ACT after a suicide threat. Hospital records include information from her mother suggesting use of a range of illicit drugs including Ice, and a diagnosis of drug-induced psychosis as well as a description of Ms Woutersz "getting ideas of reference from songs". Clinical notes mention first-onset psychosis, drug-induced psychosis, and the need to exclude a "prodromal state" (which I understand to be a reference to early signs of schizophrenia).
28. Ms Woutersz remained in hospital for some days, and was discharged to a residential rehabilitation program.
29. Clinical notes from Ms Woutersz' admission to Calvary Hospital refer to "suspected early psychosis, lengthy history for mood dysregulation, over-valued and somewhat grandiose ideas and plans, disorganised thinking, impulsive and poor judgement".
30. Ms Woutersz failed to appear in court for a mention of the two driving charges. A warrant was issued, and she was arrested.
31. On 18 March, Ms Woutersz was discharged from residential rehabilitation, but the next day told her rehabilitation case worker that she had been suffering psychotic symptoms (apparently including "auditory hallucinations" or "voices"). On 31 March, her case worker recorded that Ms Woutersz had been drug free for the past 4 weeks, and that the voices had "resolved".
32. Ms Woutersz began work as a receptionist at a Canberra brothel, and worked there for about two weeks.
33. Ms Woutersz appeared in court on the two driving charges, and the matter was adjourned for sentence in July.
34. Ms Woutersz worked briefly as a receptionist at a Perth brothel, before being sacked for using the work phone to buy drugs. She returned to Canberra and then spent some time in Sydney.
35. Ms Woutersz began work as a sex worker in the Perth brothel on 17 May. There was evidence of significant drug use by Ms Woutersz during the rest of the month. On 31 May she went missing from the brothel.
36. After leaving the brothel, Ms Woutersz stayed with a man in Perth for several weeks. He gave evidence of her heavy drug use. He had twice sold her Ice, but gave evidence that he refused to sell her any more after seeing the effects of the drug on her.
37. On 19 June Ms Woutersz returned to the brothel, apparently unaware that she had been missing for nearly three weeks. On 23 June she left the brothel and flew back to Canberra with her father. Mr Woutersz observed that she seemed to be affected by drugs.
38. After being taken to hospital in Canberra by her father, where she stayed for about 15 days, Ms Woutersz was diagnosed with "Bipolar Disorder, manic episode", and a "stimulant use disorder". On the day after her admission, she reported having heard voices for the previous three days, and admitted that she had not been compliant with her psychiatric medication. Ms Woutersz was again discharged to residential rehabilitation.
39. Ms Woutersz did not attend her sentencing hearing in respect of the driving charges, and further arrest warrants were issued.
40. Before 9 August, Ms Woutersz left the rehabilitation program and travelled with her mother back to Perth, where she was to stay with her aunt, Christine, and Christine's husband Mervyn. It seems that while staying there, Ms Woutersz would disappear for several days at a time and then return after, apparently, bingeing on drugs. Her aunt and uncle reported bizarre behaviour on several occasions when she returned; her uncle referred to her hallucinating, and her aunt said that on one occasion when they were called to pick her up, Ms Woutersz told them "there's so many people coming after me".
41. In Perth, Ms Woutersz contacted a former client from the Perth brothel, who was a "fly in fly out" worker who spent about 9 days of each 5 weeks in Perth. They agreed that he would pay Ms Woutersz $2,000 per fortnight on condition that she did not work at the brothel.
42. Ms Woutersz saw a general practitioner, and admitted continuing drug use. She also told the doctor that she was in a relationship with Jehovah.
43. On 23 September, Ms Woutersz saw a mental health nurse at a clinic conducted by the Armadale Health Service in Perth. The nurse recorded that she "answered questions appropriately, made good eye contact, had no pressure of speech, and did not respond to unseen stimuli". Ms Woutersz told the nurse that she was addicted to Ice, was spending $1,000 per week on drugs, and was "having too much fun" to want a referral to a drug and alcohol service. Christine, who had come to the clinic with Ms Woutersz, said that when she was on drugs, Ms Woutersz spoke to herself and responded to unseen stimuli.
44. Another mental health nurse took part in a home visit by the Crisis Assessment and Treatment Team to Christine's home. He recorded reports from Christine that Ms Woutersz would disappear for days on end while bingeing on Ice, then return to Christine's house where she would sleep for several days, eat large amounts of food, and then leave again. Christine reported that Ms Woutersz was keeping urine in the fridge, and possibly drinking it.
45. Ms Woutersz described the arrangement with the "fly in fly out" worker, describing herself as his "private prostitute". She agreed with Christine's report that she was keeping urine in the fridge, but refused to discuss her reasons; the nurse recorded, or perhaps summarised, her comment as that "every one has some kinks in what they do".
46. The nurse described Ms Woutersz as self-absorbed and with limited insight, and concluded that her judgment was intact, "although she is making some poor life choices". He noted that there were no signs of acute mental health symptoms during this visit.
47. A general practitioner saw Ms Woutersz for (at least) the second time. Afterwards, she called the Armadale Health Service and reported that she was concerned that Ms Woutersz had a mental illness which was "being missed". The doctor believed that Ms Woutersz' mental state had deteriorated since she last saw Ms Woutersz.
48. A triage nurse from the Armadale Health Service wrote to the general practitioner attaching a risk assessment which concluded that Ms Woutersz was assessed on 23 September 2014 and 8 October 2014 and was found to be not psychotic.
49. Ms Woutersz' uncle, Mervyn, told her to get her life sorted out, or leave. She flew back to Canberra that afternoon, arriving back after 11.00 pm. She caught a taxi to the home of another uncle (her father's brother Steuart Woutersz, who lived in Calwell), and knocked on the windows, causing the family to call police.
50. Police arrived at the Calwell house and found Ms Woutersz outside. Her uncle Steuart Woutersz took her in, and she slept there that night. Steuart Woutersz described her as "[not] in a good place at all". Both he and the police observed Ms Woutersz using a dummy. SW also gave evidence of seeing Ms Woutersz making convulsive movements, "like she was sucking a dummy", but that "she didn't have a thing in her mouth".
51. In the morning, Ms Woutersz was still "distant". Her father came to collect her, but she was abrupt, refused a hug or other physical contact from him, and said that her parents were not her real parents. Ms Woutersz' father declined her request to take her to a women's refuge, but agreed to take her to hospital.
52. Just after 12.30 pm, her father dropped Ms Woutersz at Canberra Hospital, where she complained of depression and bulimia, and asked to be admitted. Ms Woutersz told a mental health nurse she was bored, and insisted she wanted to be admitted to hospital. Hospital records note that she rejected community-based options "such as referral to a community mental health team, [mental health Crisis Assessment and Treatment Team follow up] in the interim and NGO Support". When the nurse told Ms Woutersz that "needing to be looked after" was not a reason for a hospital admission, she abused the nurse. CCTV evidence from the hospital shows Ms Woutersz putting something that could be a dummy into her mouth from time to time.
53. Ms Woutersz was refused admission to hospital, and told to go away, but she stayed in the hospital waiting room overnight.
54. The Crown submitted that in the CCTV footage from the hospital waiting room, Ms Woutersz "does not look like she is having a schizophrenic episode", but did not refer to evidence of what a person having a schizophrenic episode would be expected to look like.
55. I have looked briefly at the CCTV footage. Ms Woutersz seems to spend much of her roughly 20 hours in the waiting room either curled up in a chair or lying on a couch, in each case wrapped in a blanket. My assessment is that Ms Woutersz' behaviour does not look particularly "normal", but it might not be particularly abnormal in terms of the common behaviour of a person spending an extended period in a hospital waiting room. On the other hand, her behaviour does not in any respect fit Professor McGregor's description of the difficulties caused at the emergency departments of Australian hospitals by the presence of "highly agitated, psychotic and violent Ice users" who "will often require five or more staff to be restrained and sedated".
56. Ms Woutersz left the hospital Emergency Department at 9.00 am. Just after noon a nurse, Caroline Bain, telephoned Ms Woutersz' father Keith, and he told her that Ms Woutersz had not been in touch with the family and that no-one knew where she was. Keith Woutersz told Nurse Bain that he thought Ms Woutersz had stopped taking her medication for bipolar disorder and that she was likely using drugs.
57. Just before 6.00 pm that day, Ms Woutersz' father contacted Canberra Hospital and told a staff member that Ms Woutersz had just come home, and that if she was unsettled he would contact them.
58. Early in the afternoon, Ms Woutersz' father contacted a staff member at Canberra Hospital and told her that Ms Woutersz was "very settled" and seemed to be going well. She had "looked and acted normal", had had dinner and gone to bed, and he believed she had slept well. She had not demonstrated any physical or verbal aggression. Keith Woutersz said that Ms Woutersz would be staying with him and her mother permanently now.
59. That evening, the family made plans for Ms Woutersz to "get her life back in order". Her mother was to help her deal with the outstanding arrest warrants relating to the driving charges, and there was also discussion of approaching the RSPCA seeking work for Ms Woutersz.
Evidence - the killing of Cheryl Woutersz - 17 October
60. On 17 October 2014, Keith Woutersz left for work at about 7.45 am, leaving Ms Woutersz and her mother at home.
61. Neighbours heard "heavy metal" music coming from the house from mid-morning until about noon.
62. Ms Woutersz' cousin John Melder called the family's land line phone several times during the day to ask Ms Woutersz if she was coming to his birthday party. Between 12.48 pm and 1.11 pm he called three times, but got no answer. At 2.05 pm he called again, and Ms Woutersz answered. She told him that she had "fucked up with [her] family", but when he asked how, she said she needed to go to the bathroom, and hung up. It is not clear from the statement of facts whether this conversation took place before, after, or at some point in the course of the events described at [63] to [66] below; however the Crown points to the possibility of inferring from the content of the conversation between Ms Woutersz and her cousin that Ms Woutersz was unable to ask her mother for money for a bus fare, and that this was because Cheryl Woutersz was already dead.
63. Whatever the time of the killing, it seems that before it Ms Woutersz and her mother had an argument. Ms Woutersz brought in a hammer and some rope from the garage. She slapped and punched her mother, knocking her out; Ms Woutersz then put her mother on a chair and began cutting her mother's hair. When her mother regained consciousness, Ms Woutersz hit her with a terracotta pot and then struck her repeatedly on the left side of her head, face and jaw, using the hammer. The blows broke her mother's skull, causing pieces of brain and skull to fall onto the floor. Ms Woutersz struck further blows after her mother fell to the floor.
64. Ms Woutersz then brought in a ladder and tied her mother's body to it by her feet. She used this to drag the body through the house and out into the back yard, taking it then to a narrow strip at the rear of the house where there was an elevated garden bed. Ms Woutersz used a shovel to empty quite a lot of soil from the garden bed, and then tried unsuccessfully to lift the body up into the elevated garden bed. Eventually she left the body there, still tied to the ladder, and went back inside.
65. Ms Woutersz cleaned the inside of the house thoroughly, using gloves, paper towels and various cleaning products. She put bloodied items and some biological matter from the deceased into either the general rubbish bin or the recycling bin, cleaned the hammer, and put it back in its rack in the garage.
66. Ms Woutersz washed herself in the main bathroom, leaving some clothing in the wash basin and some blood-stained towels near the spa bath and shower.
67. Around 5.30 pm Keith Woutersz arrived home to find Ms Woutersz in the kitchen cooking eggs and wearing only a G-string. He asked her where her mother was; she said "I don't know", and walked into her bedroom and lay on her bed. While Mr Woutersz was looking for Cheryl, Ms Woutersz opened her bedroom door and asked him to turn off the stove, then returned to her bed.
68. Eventually, after opening the garage, Keith Woutersz found Cheryl's body in the backyard. He asked Ms Woutersz what she had done, and again received no answer. Mr Woutersz then called his brother, and Ms Woutersz' sister Cassandra Smith, and they called the police, who came and arrested Ms Woutersz.
69. Assorted pieces of paper from a notebook were found, partly burned, in a metal bin outside the bathroom. A square had been torn out of one page, and although the square piece was never found, analysis indicated that on it had been written "RIP CHERYL WOUTERSZ".
70. After her arrest, Ms Woutersz was held in the police Watch House. Based on his examination of relevant records, Professor Greenberg reported:
On the 17 October 2014 a phone call was made by the Police at the watch house to ACT Mental Health. The police officer was reportedly concerned that Ms Woutersz did not understand the gravity of her charges. She was smiling to herself and seemed confused. She was tangential and illogical in conversation.
71. Early in the morning police interviewed Ms Woutersz. The statement of facts says that at this point she "gave her name and appears to have acknowledged preliminary issues and [given] a reasonable history". It is not clear to me what this is intended to convey, but the record of the police interview suggests that Ms Woutersz was not particularly communicative, and not particularly rational (for instance, she gave her home address as "earth" and said that she was employed for "world peace and harmony").
72. Ms Woutersz spoke to several psychiatrists in the weeks and months after her arrest, whose records and opinions (as well as the report from Professor Greenberg, who did not speak to her) are discussed at [89] to [134] below. She provided inconsistent accounts of her drug use in the period leading up to the killing of her mother, but slightly less varied accounts of the day of the killing. Her reports about these matters are dealt with in discussion of the expert evidence.
73. It is clear from evidence given at the trial, including from the victim's diary, that there were tensions in the relationship between Ms Woutersz and her mother. Ms Woutersz' lifestyle choices, especially her involvement in drug use and prostitution, unsurprisingly distressed her family, who had strong Christian beliefs and views, but they maintained the relationship with Ms Woutersz and over time kept trying to support, help and protect Ms Woutersz. Within that framework, however, there were regular arguments, and it seems that Ms Woutersz frequently tested her parents' patience. It is also clear from Ms Woutersz' own reports that she was in conflict with her mother in the period immediately before the killing.
74. While Ms Woutersz was in the Alexander Maconochie Centre (AMC) after the killing, her phone calls were recorded and monitored. During a number of those phone calls with family members, she discussed the possibility that she would "get off" because she had been mentally unwell; the Crown noted, however, that in only two of those phone calls did Ms Woutersz mention that she was hearing voices. On the other hand, the mental health records show a number of other reports of continuing auditory hallucinations (eg to Dr Samuels on 22 August 2016).
75. For the purpose of determining the degree of Ms Woutersz' impairment in her mental responsibility at the time she killed her mother, and other aspects of her mental condition relevant to sentencing, I have been provided with:
(a) a large bundle of medical records;
(b) six reports from five psychiatrists (one of them provided two reports);
(c) a report from a professor of psychopharmacology; and
(d) a report from a forensic pharmacologist and toxicologist.
76. Ms Woutersz' reports about her drug use, at least after the killing, seem to have been inconsistent and apparently unreliable. More significant are the reports of her presentation after the killing, and her descriptions to various psychiatrists of her experience, or at least perceptions, of the course of events on the day of the killing. Also significant are the reports of Ms Woutersz' progress since she has been in custody (a period of more than three years).
77. On 20 October 2014, Ms Woutersz told mental health workers about her recent use of methamphetamine and cannabis; Dr Greenberg described her reporting:
that she had been using methamphetamines in the last two weeks and cannabis on a daily basis, $10 to $15 per day which were both smoked.
78. The Crown interpreted this as referring to daily use of both methamphetamines and cannabis, but it would more aptly refer to use of methamphetamines in the last two weeks (that is, within the last two weeks but not necessarily more than once) and cannabis daily.
79. The next day (21 October) Ms Woutersz told a mental health worker that she had not been taking her psychiatric medication, and "admitted to cannabis a week prior to the alleged offence and methamphetamines one week prior to that date".
80. Dr Westmore referred to a document from the ACT Government Alcohol and Drug Service dated 23 October 2014 indicating that Ms Woutersz had last used methamphetamine and cannabis one week previously (ie the day before the killing). The source of the information reported by the Alcohol and Drug Service is not apparent.
81. Ms Woutersz told Dr Westmore that she had stopped using Ice more than 30 days before killing her mother and also that she had stopped taking her medication about a month before.
82. Ms Woutersz told Dr Nielssen that she had stopped using Ice over a month before the killing, but conceded one use of cannabis about a week before. She also told him that she had stopped taking her anti-psychotic medication (olanzapine) about a month before the killing.
83. Professor Greenberg referred to Ms Woutersz' various reports to different people about her drug use before the killing, and noted that she was an unreliable historian about such matters.
84. In March 2015 Ms Woutersz told psychologist Tom Sutton that she had used Ice 30 days before the killing and had used cannabis a week before the killing.
85. Ms Woutersz told Dr Samuels, at some stage after he took over responsibility for her care in July 2016, that she began using methamphetamine regularly in the five months before the killing, and had also used cannabis regularly since she was 16 years old.
86. Ms Woutersz told Dr Westmore about her thoughts on the day of the killing. She was hearing multiple voices, which among other things told her to get her favourite tools and some rope, that her mother was bad and should be killed properly (otherwise "she wouldn't come back good") and buried with something of her own and something of Ms Woutersz'.
87. Ms Woutersz told Dr Nielssen that after she stopped her anti-psychotic medicine (about a month before the killing), her auditory hallucinations became more intense and convincing. To Dr Nielssen Ms Woutersz described voices telling her to go to the garage to get rope and tools; she believed that her mother's spells were too powerful, and that "it was her versus me", and the voices told her to hit her mother.
88. On 20 October, Ms Woutersz told mental health workers that she was hearing voices at the time of the killing, and they told her, among other things, that she had to kill her mother. She believed her mother had been playing games with her to see "who can kill who first". She made similar comments to another mental health worker the next day, and over subsequent days. On 25 October she gave a graphic description of the killing to a mental health worker, explaining that the voices had said that she "had to" kill her mother.
89. Dr Westmore is a forensic psychiatrist. He was engaged by the Crown. He saw Ms Woutersz on 13 March 2015 (nearly five months after she killed her mother on 17 October 2014) and spoke to her for 90 minutes.
90. He reviewed a number of documents, and some audio material (including a police interview with Ms Woutersz the day after the killing).
Ms Woutersz is a 23 year old woman who was born [t]he 2nd of her parents' 2 children. Raised in Canberra, she describes a generally happy and stable early family life. Ms Woutersz does not report a past history of exposure to violence or other abuses.
Ms Woutersz's educational and occupational history have been noted earlier in this report. I think it is clear from that history that she has lead quite an "erratic" lifestyle. Moving between Australia and the United States she has worked in a number of different settings, including working as a prostitute. She has had a number of same sex and heterosexual relationships. At times she appears to have been homeless and at other times I suspect she was heavily reliant on other people, both men and women.
Her illicit drug use history is noted earlier.
Ms Woutersz first came to the attention of psychiatrists while in the United States and I understand from your letter of Introduction that she was admitted to the Beth Israel Mental Health Facility on 12 August 2012 and that she was possibly discharged on 20 August 2012, having attracted the diagnosis of "psychosis - NOS (not otherwise specified)".
She continued to use illicit substances, at times heavily and regularly.
She was working in the escort industry at one stage and she had 2 admissions to a Canberra hospital. Behavioural problems are identified throughout the history she gave me, these include problems in a church while In New York, attracting the attention of the police when at McDonalds and having problems at a hospital, where she apparently refused to leave.
She reports a wide range of psychiatric symptoms, including auditory hallucinations, ideas of reference, grandiose and religious thoughts and then, leading up to the incident involving her mother, paranoid ideation. The disturbed behaviour, noted earlier, appears to have occurred in the context of her mental Illness, her level of insight and willingness to participate in treatment appears to have been compromised in the past and there is also a history of compliance problems.
l note again the quite grandiose themes in her thought content, wanting to help/save people, wanting to tour for world peace, unusual ideas about African animals and the belief that she had a special boyfriend/girlfriend relationship with Jehovah. There is also a history of her spending excessive amounts of money, including shouting people on drug binges and probably a history of sexual disinhibition,
It would be difficult to determine what her baseline mood and biological functions were leading up to the index offence, as all of these would have been greatly affected, not only by her mental Illness, but also her then very erratic lifestyle and her drug use.
I believe that, at the time she killed her mother, she was suffering from an acute psychosis, characterised by auditory hallucinations and paranoid delusions, which related specifically to her mother.
The differential diagnoses included drug induced psychosis or possibly another psychiatric illness, such as schizophrenia, Bipolar Disorder or a Schizoaffective Disorder, which has been aggravated/exacerbated by drug use. In reality the differentiation between a drug induced and a non-drug induced psychosis is something which would only be determined with the passage of time. This will certainly take months and possibly years to achieve. The course of her illness, in the absence of illicit drugs, will need to be monitored and, if her illness achieves full remission, then at some stage, under careful medical monitoring and supervision, it is likely that psychiatric medication will be reduced and/or ceased. If Ms Woutersz subsequently does not develop any significant disturbance of mood or of her mental state in the absence of further illicit drug use, then the diagnosis of a drug induced psychosis might become more prominent and relevant. If on the other hand she re-develops a mood disturbance and/or psychotic symptoms in the absence of further illicit drug use, then that adds weight to the diagnosis of a primary Psychotic illness, such as Bipolar Disorder - Type I or schizophrenia.
I am of the opinion that, on the balance of probability, [Ms Woutersz] was acting on delusional beliefs in relation to her mother and that she was delusionally driven to act as she did towards her mother. It is probable that she would have known the nature and quality of her conduct i.e. she would have understood that she was engaged in a process of killing her mother. I do not believe she would have been able to determine that her behaviour was wrong, as she was delusional and acting on delusional beliefs. It is difficult to indicate, on the history she gives, as to what level of control she had at the relevant time. Other issues, relating to whether or not she had a psychiatric defence to the charge of murder, will need to be considered at a late time.
[Ms Woutersz] will require long-term psychiatric support and supervision. It is difficult to comment on her prognosis at this particular time and a lot will depend on what course her illness takes, hopefully without the continuing effects of illicit drug abuse.
... [Ms Woutersz] has given a number of accounts in relation to her drug use history leading up to the incident and I believe her history in that regard is unreliable. It may assist with the diagnostic process if she could be re-assessed in several months' time. That may help move the diagnosis from a list of possible conditions to perhaps a provisional or even a definite diagnosis.
93. Dr Nielssen, a psychiatrist who was engaged by the defence, interviewed Ms Woutersz by audiovisual link to the AMC on 13 February 2015 and by telephone on 17 March 2015 (around the same time she spoke to Dr Westmore).
94. Dr Nielssen noted Ms Woutersz' recurrent episodes of mental illness and the "very severe episode of psychosis that took some months to resolve despite treatment, and offered two "diagnoses", being schizophrenia and substance use disorder. He identified the basis for preferring the schizophrenia diagnosis, in particular the pattern of Ms Woutersz' symptoms and their persistence for some time after drug use, and the symptoms as such, including bizarre delusional beliefs, auditory hallucinations, blunted emotional response, and ambivalence about symptoms. He noted also that Ms Woutersz met the criteria for a diagnosis of substance use disorder, referring to:
(a) her use of drugs known to have harmful psychological effects;
(b) the role of drug use in triggering what he described as the first psychotic episode, being an occasion on which Ms Woutersz spent eight days in a psychiatric ward in New York, where she was successfully treated with antipsychotic medication; and
(c) "the probable contribution of intermittent drug use to subsequent exacerbations of mental illness".
95. However, Dr Nielssen's comments about schizophrenia suggest that he has made a diagnosis of an underlying mental illness by reference to Ms Woutersz' symptoms; on the other hand, the relevance of his reference to substance use disorder seems to be simply that her collection of behaviours meets the diagnostic criteria for attaching the "substance use disorder" label.
96. Dr Nielssen made the following comments about mental impairment:
She has the mental illness schizophrenia, which is known to produce a pattern of abnormality of mind because of an underlying abnormality of neurological function. At the time of the offence she did not know that her conduct was wrong because of the effect of evolving delusional beliefs that were secondary to the content of hallucinated voices. Her disorganised thinking and bizarre interpretation of symptoms deprived her of the ability to reason with a moderate degree of sense or composure about whether her conduct would be seen by others to be wrong, consistent with being surprised that her father was upset and feeling excited about the arrival of the police. The influence of hallucinated voices directing her actions, or explaining to her what she should do, is also likely to have deprived her of the ability to control her conduct.
Regarding prognosis and treatment
The history of recurrent episodes of mental illness, and of a very severe episode of psychosis that took some months to resolve despite consistent treatment with high doses of antipsychotic medication, indicates that Ms Woutersz has a chronic form of mental illness for which she is likely to require lifelong treatment, initially by a comprehensive forensic mental health service in a rehabilitation ward for the rehabilitation of forensic patients. Given the history of severe mood disorder, previous presentation with suicidal thoughts and the nature of her offending, [Ms Woutersz] is likely to require ongoing treatment for depression.
97. Professor Greenberg is a forensic psychiatrist who was engaged by the Crown.
98. Ms Woutersz refused to speak to Professor Greenberg. He provided a report based on the available documents, and audio or audiovisual material including:
(a) the record of Ms Woutersz' police interview and forensic procedure [the day after she was arrested]; and
(b) audio recordings of telephone calls intercepted while Ms Woutersz was incarcerated in the AMC.
99. Among other things, Professor Greenberg provided a useful summary of records relating to Ms Woutersz' "post-offence psychiatric contact" in Canberra Hospital and the AMC.
100. Those records suggest that Ms Woutersz remained psychotic to some degree for a period as long as 13 days after the killing.
101. Professor Greenberg noted ACT Mental Health Services records describing Ms Woutersz' presentation on 18 October 2014 as follows:
She was noted to be psychotic with evidence of auditory hallucinations and thought blocking. She was also noted to be laughing inappropriately to herself at times. She denied any substance abuse. She talked about God and other forces. The psychologist, Thabile Twala, noted that there was evidence of auditory hallucinations, some thought blocking, she was very disorganised in her behaviour with laughing and talking to herself. She described her mood as being happy. She was distracted and had delusional ideation, grandiosity and ideas of reference. She appeared to be responding to auditory hallucinations. She had limited insight into the magnitude of her alleged charges. On the 18 October 2014, Ms Twala noted that when Dr Aldridge asked if she knew why she was in the AMC, she stated that she murdered her mother and did not appear distressed and there was no facial reactivity.
102. The records suggest that after 18 October Ms Woutersz' auditory hallucinations had from time to time subsided, but it was not until 29 October that Ms Woutersz said that she was no longer hearing voices, and asked about going home. Other material from the Canberra Hospital and AMC records described other signs of mental illness during the first two weeks after the killing.
103. Professor Greenberg also provided a useful summary of the various versions of the facts reported by Ms Woutersz to other doctors and a psychologist. He noted that Ms Woutersz was "not a very reliable historian with regard to her version of the facts", but nevertheless concluded that in his opinion, Ms Woutersz was "likely psychotic at the time of the alleged offence", that psychosis being a mental illness that amounted to a mental impairment.
104. Professor Greenberg discounted the possibility that Ms Woutersz' mental state was solely due to intoxication at the time of the alleged offence, noting that her psychotic symptoms persisted for several days or possibly weeks thereafter, whereas intoxication symptoms for illicit substances generally last no more than 24 to 48 hours.
This psychosis could have been due to her chronic use of illicit substance which caused a substance induced psychosis or a functional illness such as schizophrenia or schizoaffective disorder. One of course cannot exclude the possibility that she may have had both intoxication at the time period of the alleged offence on top of an underlying substance induced or functional psychotic state.
On the other hand individuals with functional illnesses such as schizophrenia or schizoaffective disorder have similar symptoms to substance induced psychosis but the underlying illness is independent of the use of illicit substances. The use of illicit substances in these individuals can aggravate or precipitate episodes of psychosis.
107. In his first report, dated 31 October 2015, Professor Greenberg concluded that Ms Woutersz "likely had a mental impairment and this mental impairment would avail her opportunity for a defence of mental impairment".
108. In a supplementary psychiatric report dated 10 July 2017, which took account of reports prepared by Dr Barker and Dr Samuels in November 2016, transcripts of the evidence of Dr Samuels and Dr Barker (presumably in the first trial), and recordings of Ms Woutersz' phone calls from the AMC between 9 November 2014 and 4 December 2015, Professor Greenberg provided a more ambivalent assessment. He noted that the possibilities were:
(a) a drug-induced psychosis with residual amphetamine-induced psychotic symptoms;
(b) a drug-induced psychosis with fabricated hallucinatory symptoms (malingering) for primary gain (in this case, to allow a plea of not guilty by reason of mental impairment); or
(c) a chronic schizophrenic disorder with history of associated drug use, which is now treatment resistant (given that Ms Woutersz has continued to complain of ongoing residual psychotic symptoms for well over the two years since the killing).
109. Professor Greenberg concluded that the fabrication or malingering of previously experienced psychotic symptoms in order to support a defence of mental impairment could not be discounted, and a determination of a genuine schizoaffective disorder could not be made with any certainty at the date of his report. He noted that Ms Woutersz' claims of continuing residual psychotic symptoms did not "clarify this clinical dilemma", because of the possibility that Ms Woutersz is malingering.
110. Dr Barker is a consultant psychiatrist with Forensic Services, Court Assessment and Liaison Services in the ACT. At the request of the defence, he provided a report dated 11 November 2016 which was admitted in the trial.
111. Dr Barker was Ms Woutersz' treating psychiatrist from 7 November 2014 to 6 July 2016. During that time he saw her approximately once a month (23 times all up). He believed she was suffering from schizophrenia. He referred to a history of auditory hallucinations and delusional beliefs, with complaints of auditory hallucinations continuing during the time he was involved in her care despite treatment with therapeutic doses of four different antipsychotic medications. Dr Barker noted that as at the date of his report she had declined treatment with a further drug (clozapine) because this requires regular blood tests to monitor potentially dangerous side effects of the drug.
112. Dr Barker reported that while he was treating Ms Woutersz she continued to report auditory hallucinations, fluctuating in intensity and frequency but generally reducing over the course of time, and that she had said that she felt more capable of ignoring the voices.
113. Dr Samuels is a forensic psychiatrist and the Clinical Director, Forensic Mental Health Services in the ACT. He took over as Ms Woutersz' treating psychiatrist in July 2016. At that stage she was being medicated with the fourth antipsychotic medication trialled to deal with her persistent auditory hallucinations and delusional beliefs; Dr Samuels noted, however, that she was less distressed and preoccupied by these symptoms.
114. On 14 July 2016 Dr Samuels was called in urgently, apparently to the AMC, because of a reported deterioration in Ms Woutersz' mental state. It seems that there was concern that Ms Woutersz was either using illicit drugs or not taking her prescribed medication (she had refused to provide a urine sample).
115. Ms Woutersz denied both suggestions, but reported to Dr Samuels that she was hearing the voices of three people, Jehovah, Lucifer and Satan. She also mentioned the voices of other well-known people, and said that she was feeling increasingly paranoid about a possible conspiracy against her by people who are jealous that Jehovah was favouring her. Ms Woutersz also reported that at times the voices would ask her whether she really believed that she needed to take the medication.
116. Dr Samuels, being concerned that she might resist taking her medication, had considered that it would be best to switch Ms Woutersz to an injectable form of the relevant antipsychotic.
117. After several days Ms Woutersz agreed to the injections. Her antidepressant dose was increased because of continuing "residual biological symptoms of depression".
118. In July and August Ms Woutersz reported voices belittling and taunting her. Dr Samuels pointed out that these symptoms appeared to be more distressing when Ms Woutersz was "subjected to increased stress such as when she is being teased and bullied by other female detainees".
119. On 22 August 2016, concerns about possible deterioration in Ms Woutersz' mental state were raised by corrections staff.
120. On 15 September Ms Woutersz reported that her symptoms had improved, and she was having periods of 24 to 36 hours without any auditory hallucinations. She also described changes in the nature of the voices she was hearing.
121. On 20 September Ms Woutersz reported anxiety about her forthcoming trial and distress arising from the comments made by other detainees. She was still suffering some auditory hallucinations, and was also worried that other detainees might be able to "hear" what she was thinking.
122. On 6 October 2016, Ms Woutersz reported that she had not been sleeping well and that a different voice had returned, one which made her do things whether or not she wanted to. She said that unlike the other voices, this voice was scary because it could make her do things. Dr Samuels again discussed with her the possibility of prescribing clozapine, but he and Ms Woutersz agreed that this this should not be started so close to her trial, and instead the possibility was to be revisited immediately after the end of the trial.
123. Dr Samuels considered that Ms Woutersz has a psychotic illness, most likely as a result of schizophrenia or schizoaffective disorder. The fact that her symptoms appear to be treatment-resistant suggested to him that she should begin treatment with clozapine after her legal matter is concluded.
124. Dr Samuels noted that the DSM-5 excludes a diagnosis of schizophrenia if the symptoms are a result of illicit psychoactive substance use; he also pointed out that Ms Woutersz' symptoms have persisted for a substantial period (some two years) since the period of acute withdrawal or severe intoxication. He believed that this period was substantial enough for him to conclude:
Although the use of illicit drugs is likely to have been one of the risk factors precipitating [Ms Woutersz'] mental illness, in my opinion ... [Ms Woutersz] is suffering with a functional and enduring mental illness rather than a substance (drug) induced psychotic disorder.
125. Dr Samuels provides a differential diagnosis of schizoaffective disorder. This involves a combination of schizophrenia symptoms and "prominent mood symptoms in the form of either mania (elevated mood) or depressed mood". He said that her recorded history, and her presentation to hospital in July 2014, would support this diagnosis.
126. At some point, Dr Barker resumed the role of Ms Woutersz' treating psychiatrist, and at the request of the defence he provided a second report, dated 6 December 2017, for the purposes of sentencing. In that report, he commented on Ms Woutersz' condition and prognosis as at December 2017.
127. Dr Barker reported that Ms Woutersz had continued to complain of auditory hallucinations, that she has begun treatment with clozapine, a potentially dangerous medication regime which requires careful monitoring, and that she "continues to experience ongoing auditory hallucinations". Dr Barker reported that she "may require further adjustments to her treatment regime to achieve satisfactory symptom control", noted that an adequate response to clozapine can take up to a year; he envisaged:
that she will required treatment with [clozapine] for the foreseeable future to avoid a deterioration in mental state that could potentially be associated with serious consequences for herself and others, particularly noting the gravity of her index offence.
Ms Woutersz's prognosis is highly dependent on her ability to maintain adequate adherence with her prescribed treatment and abstain from illicit substance use. If she is able to do this then I consider that her prognosis would be reasonably positive. If Ms Woutersz is non-compliant with her treatment, or if she were to resume illicit substance use then her prognosis would be much more guarded, with a high potential for a decline in mental state and an associated risk of serious violence.
129. Dr Barker reported a "significant deterioration" in Ms Woutersz' mental state in early March 2017, despite her being compliant with the then prescribed anti-psychotic depot medication (Aripiprazole Maintena), and negative results from drug testing at the time. He went on:
During this period Ms Woutersz markedly reduced her food intake and ... on 6 March 2017 she was noted to have lost 3 kg since the preceding week. She appeared blunted and perplexed at times, and her speech was difficult to follow. There was marked change in Ms Woutersz's general appearance and she was frequently dishevelled and exhibited a blank stare. Ms Woutersz's deterioration in mental state during this period may have been associated with poor sleep and reduced oral intake, or due to psychosocial stressors such as concern regarding her upcoming trial.
130. Dr Barker suggested that now that Ms Woutersz is taking clozapine, any future acute deteriorations should be less intense. Dr Barker reported that Ms Woutersz has not yet "achieved a period of sustained remission", but notes that:
adequate response to treatment with clozapine can take up to one year (Lieberman et al, 1994), and it is possible that Ms Woutersz will continue to experience improvements in her psychotic symptoms over the new few months.
would not currently characterise her illness as either dormant or in remission although it is possible that this could occur in the future.
132. In response to a question about how much of the acute phases of Ms Woutersz' illness could be attributed to drug use, Dr Barker first noted that there was no evidence to suggest that Ms Woutersz' March 2017 deterioration was due to drug use. He went on:
Nonetheless, substance use remains an important potential destabiliser for Ms Woutersz in the future and avoiding illicit substances will be [a] key feature in reducing her likelihood of further exacerbations of her illness.
...
It is possible that her illicit substance use may have precipitated her psychotic illness, although her illness would have undoubtedly declared itself with the passage of time even in the absence of illicit substance use. It is difficult to say whether drug use played the single most significant role in triggering her illness, or whether she experienced an acute exacerbation during the natural course of her illness.
... she requires effective treatment for her psychotic illness and ... she should abstain [from] illicit substances which would worsen her symptoms
...
Ms Woutersz should continue engagement with mental health services, including treatment with antipsychotic medication and regular review with mental health clinicians. Potential stressors such as difficulties with accommodation, finances, or interpersonal relationships should be identified and appropriate strategies developed to mitigate the potential deleterious effects that these stressors could have upon Ms Woutersz and her illness. ... Ms Woutersz would also benefit from input from drug and alcohol services to support her abstinence from illicit substance use, and assist her with developing the skills to avoid a relapse in the future. ...
133. Finally, Dr Barker made the following comments:
Effective treatment of psychotic symptoms is undoubtedly a key element in reducing the risk of homicide in persons with psychosis who have committed a previous homicide. In order to achieve this, such persons should have prolonged contact with mental health services and maintain adherence with a therapeutic dose of antipsychotic medication. They should also avoid use of illicit substances which could result of a relapse of the psychotic illness, or the use of alcohol which can cause disinhibition and thereby increase the potential for the occurrence of serious violence. Minimising potential stressors, and ensuring that adequate supports are available are also important to decrease the likelihood of a psychotic relapse. Psychological input can be of assistance in developing appropriate coping skills, and appropriate professional services can assist with managing potential stressors such as difficulties with accommodation, vocational opportunities, and interpersonal difficulties. Involvement in prosocial activities and the development of appropriately supportive interpersonal relationships can also be of benefit in avoiding future episodes of offending behaviour.
134. I note at this point the Crown's reminder that the evidence of Ms Woutersz continuing to "hear voices" (auditory hallucinations) comes almost entirely from Ms Woutersz herself, and as such may need to be treated with some scepticism. However, Dr Barker's report of Ms Woutersz' condition in March 2017 (at [129] above) seems to go beyond Ms Woutersz' self-reporting of auditory hallucinations to include matters observed by those involved in her treatment and care.
135. Professor McGregor is a professor of psychopharmacology at the University of Sydney. He is, in general terms, an expert on the acute and long-term effects, on the brain and on behaviour, of illicit recreational drugs including methamphetamine. He was engaged by the Crown to provide a report.
136. In a draft report dated 19 February 2016, he provided information that can be summarised as follows:
(a) Methamphetamine is a highly addictive stimulant drug with a capacity to produce violent and aggressive behaviours, personality change and psychosis.
(b) Methamphetamine increases the release of the neurotransmitters dopamine, noradrenaline and serotonin in the brain.
(c) The release of dopamine in particular is linked to the euphoric effect of methamphetamine and its production of excitement and motivation. Excessive dopamine release may cause paranoia and delusions.
(d) Noradrenaline may provide enhanced attention, concentration and alertness or, in higher doses, insomnia, which may in turn contribute to psychotic features such as paranoia.
(e) Higher doses of amphetamines can produce excessive dopamine release, sometimes resulting in the performance of stereotyped, ritualised behaviours.
(f) Prolonged use of methamphetamine may lead to "methamphetamine-induced neurotoxicity".
(g) Excessive dopamine release can cause long-term depletion or "downregulation" of the dopamine system of the brain, which is associated with depression, impaired cognitive function and increased susceptibility to Parkinson's disease among others.
(h) Methamphetamine-induced psychosis is a psychotic state involving suspiciousness, paranoia, aggression, delusions and hallucinations. Methamphetamine psychosis and paranoid schizophrenia may be difficult to distinguish clinically.
(i) There are high rates of psychosis among chronic methamphetamine users. More than half of heavy methamphetamine users in an Australian study had experienced a psychotic disorder at least once. Most such cases were entirely attributable to methamphetamine and did not involve "an endogenous psychotic disorder such as schizophrenia".
(j) Methamphetamine can induce psychosis in the absence of any history or family history of psychotic disorders.
(k) Prior episodes of methamphetamine psychosis are associated with an enduring vulnerability to further episodes. Resumption of methamphetamine use (even in small amounts) may trigger relapse into psychosis ("methamphetamine-induced sensitization").
(l) Heavy methamphetamine use and violent, aggressive and bizarre behaviours are associated. Among other things, this has created a major issue for emergency department staff in Australian hospitals.
(m) Psychosis may persist for weeks, months or even years beyond the last use of methamphetamine.
(n) There are no definitive studies showing whether hostility, violence and psychosis are greater during peak methamphetamine intoxication or after intoxication when cravings develop.
137. Professor McGregor provided the following description of the short-term (acute) effects of methamphetamine on the brain:
The short term effects of methamphetamine reflect its action in robustly increasing the release of the neurotransmitters dopamine, noradrenaline and serotonin in the brain. The effect of dopamine is thought to be particularly important in mediating methamphetamine's rewarding and euphoric effects and in producing excitement and motivation in the users. The ability of smoked or injected methamphetamine to rapidly elevate dopamine in the brain is also thought to be underlie its addictiveness.
The effects on noradrenaline may provide enhanced attention, concentration and alertness in users, explaining the utility of amphetamines in the treatment of ADHD and narcolepsy.
When higher doses of amphetamines are taken, particularly through a smoked or intravenous route, excessive dopamine release can occur, sometimes resulting in the performance of stereotyped, ritualised behaviours (sometimes known as "punding" or "tweaking"). Such behaviours might include dismantling and reassembling machinery in a vacuous fashion, compulsive housework, or repetitive sorting and ordering of the contents of a handbag.
Excess dopamine release is also thought to be linked to the induction of paranoia and delusions in methamphetamine users. Evidence for this comes from the fact that these can be attenuated by administration of antipsychotic drugs that block the action of dopamine.
The prolonged, heightened levels of noradrenaline produced by methamphetamine is associated with insomnia. Heavy methamphetamine users will go on binges where they go for several days without sleep. This lack of sleep may also contribute towards psychotic features seen in users of the drug, as sleep deprivation per se, can lead to paranoia.
The case of Gabriella Woutersz appears to be another example of the all-too common phenomenon of methamphetamine addiction leading to tragic consequences for the afflicted individual and their family.
The case illustrates the classic pattern of escalating use leading to drug-induced deterioration of mental health causing derailment of an individual with otherwise excellent prospects. This would almost certainly be correlated with the neurotoxic effects of repeated methamphetamine use on the brain.
Although I do not have many details of the early life of the accused, there appears to be no evidence of early trauma or mental health problems that might suggest the presence of a primary psychosis that is unrelated to drug use. Rather the trajectory is a familiar one of heavy and escalating stimulant use, increasingly erratic behaviour, an unstable lifestyle, deterioration of mental health, with repeated contact with health services as a result of drug-induced psychosis.
The events in the days leading up to the murder include reports of bizarre behaviours (placing urine in the fridge at the Aunt's house in Perth, aspects of the killing involving hair cutting, and attempted burial of the body in a planter box), hostility (abuse directed at hospital staff, the "scary" state reported by Canberra relatives, the argument with the mother) and paranoia (belief that her mother was responsible in the holocaust). These are all consistent with a residual psychotic and agitated state that may have persisted well beyond the time of acute methamphetamine intoxication in an individual with a sensitized psychotic state resulting from a long history of heavy methamphetamine use.
139. Professor Drummer, of the Monash University and the Victorian Institute of Forensic Medicine, provided a report to the defence. He provided similar information to that provided by Professor McGregor about the use and effects of methamphetamine. In summarising his conclusions, he noted that he was advising as a forensic pharmacologist with experience in the interpretation of drug effects, not as a psychiatrist.
7.1. These comments are made based on my assessment of the circumstances and associated reports as a forensic pharmacologist with experience in the interpretation of drug effects, not as a psychiatrist.
7.2. Many of the adverse behavioural symptoms caused by Ice are very similar to that seen in persons who exhibit psychoses from other causes. Therefore it is not straightforward to separate out symptoms that are unique to Ice because of its effect on the brain.
7.3. As a general comment psychoses caused by Ice (and other amphetamines) are usually only associated with heavy and often prolonged use, particularly in binge settings (repeated use of doses over a relatively short period) and regular and repeated use over weeks to months.
7.4. When this occurs personality and behaviours gradually deteriorate and when use of methamphetamine stops withdrawal symptoms occur (see paragraph 5.16) for at least several days. Eventually (weeks to months) drug-induced psychoses and other adverse behavioural symptoms lapse and the subject reverts back to their original health situation.
7.5. If the accused had used Ice in the hours to days prior to the death of her mother then I would expect withdrawal effects to set in within days of the death, such as those listed in paragraph 6.16.
7 .6. Underlying mental disease caused by other factors does not usually improve unless treated (often by anti-psychotic drugs). There is evidence from her current treating psychiatrist that she continues to hear voices suggesting that her mental illness continues ma[n]y months after her attack on her mother.
7. 7. Psychiatrists will be in a far better position to evaluate her mental state and [...] her continuing mental health. The use of Ice in the days before the incident could exacerbate her mental impairment, however this is not substantiated by any evidence, including any drug testing on her urine.
7.8. In this matter my conclusion of her drug history (particularly Ice) is that accused's claimed use of Ice in the months leading up to the murder of her mother was occasional and in the month before no use was claimed. Therefore in my view her actions to murder her mother would be not be consistent with a psychotic behaviour primarily caused by use of Ice before this period particularly if psychiatrists diagnose an underlying mental illness.
141. Paragraph 6.16 referred to by Professor Drummer describes withdrawal symptoms, as follows:
6.16 Repeated use will lead to rebound fatigue when the effects of amphetamines wear off. Once dependency to methamphetamine is established, withdrawal reactions occur on abstinence to amphetamines. Fatigue, somnolence and depression are common symptoms. This can manifest as persons falling asleep even though there are measurable concentrations of drug in their blood.
142. The claim of diminished responsibility is made under s 14 of the Crimes Act 1900 (ACT), which is as follows:
(1) A person on trial for murder shall not be convicted of murder if, when the act or omission causing death occurred, the accused was suffering from an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent cause or whether it was induced by disease or injury) that substantially impaired his or her mental responsibility for the act or omission.
(2) An accused has the onus of proving that he or she is, under subsection (1), not liable to be convicted of murder.
(3) A person who, apart from subsection (1), would be liable (whether as principal or accessory) to be convicted of murder is liable to be convicted of manslaughter.
(4) The fact that a person is, under subsection (1), not liable to be convicted of murder does not affect the question whether any other person is liable to be convicted of murder in respect of the same death.
(5) If, on a trial for murder, the accused contends -
(a) that he or she is entitled to be acquitted on the ground that he or she was mentally ill at the time of the act or omission causing the death; or
(b) that he or she is, under subsection (1), not liable to be convicted of murder;
the prosecution may offer evidence tending to prove the other of those contentions and the court may give directions as to the stage of the proceedings when that evidence may be offered.
143. Several of the decisions relied on in this case were made in NSW, where the equivalent statutory provision, s 23A of the Crimes Act 1900 (NSW) (the NSW Act) is slightly different, being relevantly:
23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.
underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind.
144. I note the Crown's advice that the previous s 23A of the NSW Act was identical to the ACT provision (s 14), and that the current form of s 23A was enacted to give effect to the case law interpreting the previous version of s 23A. That seems to mean that the current s 23A and the current s 14 are intended to have essentially the same operation.
145. Thus, in the ACT, diminished responsibility can be found, relevantly, where the accused's "mental responsibility" for the act causing death was substantially impaired by:
an abnormality of mind ... arising from a condition of arrested or retarded development of mind or any inherent cause or ... induced by disease or injury
146. The provision may be contrasted with s 28 of the Criminal Code 2002 (ACT), which excludes criminal responsibility where a person's mental impairment has deprived the person of the capacity to know the nature and quality of his or her conduct or that the conduct was wrong, or to control the conduct. That is, s 14 refers to an abnormality of mind that impairs a person's mental responsibility (which presumably refers to impairing his or her mental capacity to understand, judge or control conduct) rather than depriving him of that capacity.
147. Subsection 14(2) puts the onus on the accused to prove that under s 14(1) she is not liable to be convicted of murder.
148. In NSW, a murder conviction is not available, and an accused must, where otherwise appropriate, be convicted of manslaughter, if:
the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from [a pre-existing mental or physiological condition, other than a condition of a transitory kind], and ... the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
149. The NSW section explicitly refers to an abnormality of mind that substantially impairs a person's capacity to understand events, to know whether his or her conduct was right or wrong, or to control himself or herself, as distinct from depriving the person of the capacity to understand, judge or control conduct.
150. Subsection 23A(4) puts the onus on the accused to prove that, by virtue of s 23A, he or she is not liable to be convicted of murder.
151. In the ACT, there is no explicit exclusion of intoxication from the concept of "abnormality of mind", but intoxication as such does not seem to fall within the possible causes listed for the abnormality of mind required, since intoxication is not:
(a) a condition of arrested or retarded development of mind;
(b) an inherent cause for an abnormality of mind; or
(c) a disease or injury inducing an abnormality of mind.
152. In NSW, the effects of self-induced intoxication are explicitly to be disregarded in determining whether s 23A operates to exclude a finding of guilty of murder (s 23A(3)).
153. I am satisfied that s 14 of the Crimes Act does not provide for a verdict of manslaughter on the grounds of diminished responsibility if the accused's mental responsibility for the act causing death was substantially impaired only as a result of intoxication due to the use of, relevantly, an intoxicating drug of any sort (see, for instance, Regina v Derbin [2000] NSWCCA 361 at [73]; R v Jennings [2005] NSWSC 789 at [31] to [33]). I do not understand that proposition to be in dispute in this case.
154. Nor is there any suggestion in the evidence that Ms Woutersz' conduct was solely and directly attributable to intoxication caused by methamphetamine or any other substance.
155. The facts set out at [9] to [74] above are based on the evidence given at the trial as summarised in Exhibit A on sentence (although at a couple of points I have gone back to the original evidence for clarification). However, the manslaughter plea, and its acceptance by the Crown, raised slightly different issues from those that had arisen in the trial, and each party sought several further specific findings said to be relevant to sentencing that were not addressed in the agreed summary of evidence contained in Exhibit A on sentence.
156. The Crown sought findings along the following lines:
(a) that Ms Woutersz was suffering an abnormality of mind, specifically schizophrenia;
(b) that Ms Woutersz used drugs heavily for several years, including in the lead-up to the killing;
(c) that the use of drugs very shortly before the killing triggered an acute episode of the underlying abnormality of mind, and the victim was killed during that acute episode;
(d) that the underlying abnormality of mind, rendered acute by drug use, substantially impaired Ms Woutersz' mental responsibility for the killing so as to justify a finding that Ms Woutersz was guilty of manslaughter rather than murder;
(e) that the killing was preceded by a tense history between Ms Woutersz and her mother which culminated in a significant argument between the two women on the morning of the killing, and that the ongoing conflict between the two women also contributed to the killing;
(f) that in the absence of drug use, Ms Woutersz' underlying abnormality of mind is now largely dormant, with no symptoms except "low level background voices".
157. Defence counsel sought a slightly different set of findings, as follows:
(a) the accused suffers underlying illness, schizophrenia (by whatever name called);
(b) the accused has a history of drug taking;
(c) the accused has a history of episodic worsening of the underlying illness;
(d) that the episodic worsening was mainly attributable to the underlying illness, not the drug use, and that this is supported by the preponderance of medical opinion;
(e) that the relationship between the accused and the victim had not always been calm, but had involved conflicts over the accused's behaviour;
(f) that even if the argument between the accused and the victim on the day of the killing was the "final cause", the evidence is that it occurred in the context of a developing psychotic episode, rather than leading to that episode;
(g) that when the accused killed the victim, she was in the grip of a psychotic episode and "very unwell", her mental state was "highly compromised", and she was "floridly psychotic".
158. The findings sought by the two parties are in many respects not far apart. The parties agree:
(a) that Ms Woutersz suffered from an "abnormality of mind", being schizophrenia;
(b) that Ms Woutersz had a history of drug taking in the years preceding the killing (the Crown refers to "heavy" drug use);
(c) that there had been tensions in the relationship between Ms Woutersz and her mother in the years leading up to the killing, and that there had been an argument between them on the day of the killing;
(d) that on the day of the killing, Ms Woutersz was suffering an acute psychotic episode;
(e) that during that psychotic episode, and in particular when she killed her mother, Ms Woutersz' abnormality of mind substantially impaired her mental responsibility for the killing for the purposes of s 14(1) of the Crimes Act, meaning that she was not liable to be convicted of murder (s 14(1)), but she was liable to be convicted of manslaughter;.
159. The parties have different views about the respective contributions to Ms Woutersz' behaviour of her underlying mental illness, her drug use and her conflicted relationship with her mother.
(a) that drug use (specifically involving Ice), both long-term and very shortly before the killing, triggered the acute psychotic episode of the underlying illness during which the killing took place;
(b) that Ms Woutersz' underlying illness is now largely dormant, with no symptoms except "low level background voices" (this finding, which is said to be available "in the absence of drug use", assumes little or no drug use while Ms Woutersz has been in custody, and therefore implies a significant contribution made by drug use to Ms Woutersz' relevant psychotic episode); and
(c) that the killing was "preceded by a tense history" between Ms Woutersz and her mother, culminating in a significant argument between the two women on the morning of the killing and that accordingly, the killing can be attributed to a mixture of:
- (i) the history of the hostile relationship between Ms Woutersz and her mother (as shown in the diary extracts from which were in evidence in the murder trial (trial Exhibit 17);
- (ii) a confrontation between the two women on the morning of the killing, which was reported to Ms Woutersz' friend Nicole Page on 3 November 2014; and
- (iii) the drug-induced psychosis affecting Ms Woutersz at the time of the killing and involving very recent Ice use.
161. It is not clear from the way finding (c) is framed:
(a) whether it is really intended to suggest that there is some doubt about whether there were significant tensions in Ms Woutersz' relationship with her mother, such that a finding needs to be made for sentencing purposes (including possibly to found a Crown submission of premeditation); or
(b) whether it is simply a back-door attempt to elicit, via two fairly uncontroversial propositions, one of the key disputed findings, being that the killing can be attributed to a drug-induced psychosis involving recent Ice use.
(a) says that the acute psychotic episode was mainly a manifestation of the underlying illness and that any use of drugs in the period immediately before the killing was of minor significance;
(b) seeks a specific finding about Ms Woutersz' level of impairment, being that at the time of the killing she was "very unwell"; and
(c) disputes that the evidence would justify any finding about the nature of the relationship between Ms Woutersz and her mother that could be relied on for a claim that the killing was in any way premeditated.
163. There is also disagreement about the significance of the various contested findings sought. Before considering the evidence relevant to those findings, it is appropriate to consider the significance of those contested findings.
164. In short, the questions raised are as to the significance of:
(a) a finding that Ms Woutersz' drug use, whether over the few years or the few days preceding the killing, led to the emergence of the underlying illness or to the acute episode in which the killing took place;
(b) a finding that since Ms Woutersz has been abstinent from illicit drugs, her underlying illness has become dormant;
(c) a finding that Ms Woutersz was "very unwell" at the time of the killing; and
(d) a finding that the tense relationship between Ms Woutersz and her mother contributed to the killing.
165. The parties agree, and I am satisfied that this is correct, that the contribution made by drug use to Ms Woutersz' underlying mental illness, or to the acute episode in which she killed her mother, would be generally relevant in sentencing, and especially in determining the nature and structure of the sentence to be imposed having regard to the sentencing purposes of rehabilitation and community protection.
166. The finding sought by the Crown about the current state of Ms Woutersz' underlying mental illness could be relevant in assessing the contribution to that illness made by pre-offence drug use, but it will also be directly relevant in determining the nature and structure of Ms Woutersz' sentence.
167. The Crown further submitted, and the defence disputed, that the contribution made to Ms Woutersz' mental impairment by her use of drugs also needs to be determined for the purpose of assessing Ms Woutersz' culpability.
168. The Crown says that in assessing culpability (that is, moral responsibility) for a killing, the court must consider not just the level of the offender's impairment but also the offender's moral responsibility for the development of the abnormality of mind, or the acute episode of that abnormality, that resulted in the impairment of the person's "mental responsibility" such as to permit a manslaughter verdict. Specifically, the Crown says that Ms Woutersz' conduct is "more blameworthy" if the psychosis, or the psychotic episode, that resulted in the killing was caused by her drug use.
169. The Crown's approach seems to be that the reduction in Ms Woutersz' culpability as a result of her mental impairment must be in some way discounted for the contribution made to the mental impairment by Ms Woutersz' drug use.
170. As well as arguing that this proposition is "self-evident", the Crown submitted that such a determination of culpability is required to be made under s 33(1)(i) of the Crimes (Sentencing) Act 2005 (ACT).
171. If the Crown is correct, then the findings sought by the Crown as to the impact of Ms Woutersz' undisputed drug use in the years before the killing and as to the impact of any drug use in the few days preceding the killing would each potentially increase Ms Woutersz' culpability.
172. The finding that Ms Woutersz was "very unwell" at the time of the killing (that is, significantly more unwell than would have been necessary to result in a verdict of manslaughter) is sought by the defence on the ground that such a finding would reduce her culpability for the offence of manslaughter.
173. The defence says that, once an abnormality of mind has been identified as impairing a person's responsibility for the killing sufficiently to justify a verdict of manslaughter, the person's culpability is to be assessed by reference to the degree of impairment and not by reference to the offender's responsibility for the development or existence of the mental impairment.
174. That is, sentencing a person who has been found guilty of manslaughter because of "diminished responsibility" would involve two decisions about the mental impairment that affected the person.
175. First, the court must find substantial mental impairment that is not sufficient to require an acquittal under s 28 of the Criminal Code but is sufficient to justify a manslaughter verdict under s 14 of the Crimes Act.
176. Secondly, the court must assess the offender's culpability by reference to where the actual level of impairment sits in the range of impairment that would be sufficient to found the manslaughter verdict but not sufficient to require an acquittal.
177. The Crown disputes these propositions, saying that further reducing Ms Woutersz' culpability (beyond the reduction involved in reducing the offence from murder to manslaughter) by reference to the extent of her mental impairment would involve "double-dipping", and is neither appropriate nor available.
(a) that the killing was "preceded by a tense history" between Ms Woutersz and her mother which ended in an argument between them on the morning of the killing; and
(b) that the killing can be attributed to a mixture of the tense history, the immediate argument, and Ms Woutersz' drug-induced psychosis reflecting very recent Ice use.
179. The Crown submits that the finding sought about the relationship between Ms Woutersz and her mother is significant because, if Ms Woutersz' conduct was attributable to a combination of the longstanding hostile relationship with her mother and the argument with her mother on the morning of the killing contributed to the killing, then the reduction in Ms Woutersz' culpability required by her mental impairment must be in some way discounted because of the contribution made to the killing by the conflict and the argument.
180. The defence disputes that any such discounting of the significance of Ms Woutersz' mental impairment would be justified.
181. There is disagreement between the parties not only about whether particular findings ought to be made but also about the significance of such findings as are made. Since the significance of a finding in this matter may determine the standard to which the particular finding needs to be proved, it is desirable first to resolve the disputes about the legal significance of those findings.
182. In relation to the different burdens and standards of proof in a sentencing matter, I note only the comments of the majority in R v Storey [1998] 1 VR 359 at 369 (adopted by the High Court in R v Olbrich [1999] HCA 54; 199 CLR 270 at [27]) that a sentencing judge:
may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
183. Resolving those disputes has required consideration of a number of other sentencing decisions, either at first instance or on appeal. A number of cases drawn to my attention as relevant to the disputed matters or otherwise are summarised below.
184. The ACT and NSW cases that have been mentioned in submissions do not directly address the issues raised by the Crown as relevant to sentencing, either in relation to the impact of drug use in assessing culpability or in relation to the significance of the relationship between offender and victim, but some of them do recognise the significance of assessing the level of an offender's mental impairment.
185. In general, the significance of the cited cases is the absence of any discussion about the relevance to culpability of:
(a) the role of drug use in producing the mental impairment concerned; or
(b) the nature and state of the relationship between the victim and the offender.
186. The conclusions I have reached in relation to the legal issues have been largely inferred not from statements of legal principle but from practices adopted, and conclusions expressed, by sentencing judges in the ACT and NSW, and by the NSW Court of Criminal Appeal.
187. In R v Anu Singh [1999] ACTSC 32; (1999) 154 ACTR 62 (23 April 1999), Crispin J said, in determining that Ms Singh was guilty of manslaughter on the grounds of diminished responsibility:
169. The Crown now concedes that the accused was suffering from an abnormality of mind at the time of Mr Cinque's death. Furthermore, whilst the specific aetiology may not have been identified in relation to each diagnosis offered by the various expert witnesses the Crown accepts that any of the diagnostic categories identified fell within the category of [aetiologies] stipulated in s 14 of the Crimes Act. Accordingly, the only issue which I am ultimately required to resolve is whether the abnormality of mind substantially impaired the accused's responsibility for the act in question.
188. Ms Singh had resorted to drugs of various kinds after the breakdown of her previous romantic relationship, and an expert witness, Professor Hayes, had mentioned "the possibility of drug abuse which might impair a person's reasoning ability" (at [150]).
189. However subsequently, in R v Singh [1999] ACTSC 66; (1999) 154 ACTR 93 (24 June 1999, Crispin J) his Honour sentenced Ms Singh without any reference to her drug use, but after noting the evidence of one of the many expert witnesses, Dr Byrne, at [7] as follows:
Dr Byrne said that she had been living with a psychotic delusion for months and that she had a significantly impaired capacity to control her emotions and think clearly and rationally. He said that if a rational killing was taken to be 1 and a grossly psychotic and insane killing was taken to be 10 "this woman comes up in the 6 to 7 range". In other words, her mental state at the time of the offence was closer to insanity than a normal rational state.
190. His Honour noted that the victim "was obviously devoted to the prisoner and looking forward to sharing his life with her. There has been no suggestion that the actions which caused his death were in any way provoked by his conduct. On the contrary it seems clear that he had faithfully supported the prisoner through very difficult times" (at [1]).
191. Ms Singh was sentenced to 10 years imprisonment with a 4-year non-parole period.
192. In R v Navin [2016] ACTSC 109 (Navin), Burns J sentenced Mr Navin for a killing which, in a murder trial, a jury found was manslaughter on the grounds of diminished responsibility. Mr Navin suffered from paranoid schizophrenia, and Burns J found that he was psychotic at the time of the killing; there was no suggestion that Mr Navin's condition was affected by drug use of any kind.
193. Burns J said: "The question is, how substantial was that impairment?", and concluded at [14] that Mr Navin's level of mental illness at the time of the killing was closer to a state that would have justified his acquittal on the murder charge on the grounds of mental impairment "than it was to normality".
194. Burns J commented on the fact that there was no rational reason for Mr Navin to have killed the victim as one of the factors his Honour relied on in support of his assessment that Mr Navin was severely mentally impaired at the time of the killing.
195. Mr Navin was sentenced to imprisonment for 12 years with a non-parole period of 6 years, and Burns J noted (at [69]) the importance of Mr Navin's insight into his illness, and his willingness to comply with treatment, to the determination of whether and when he should be released on parole.
196. Two of the cases referred to by the Crown related to the earlier form of the NSW legislation (at [144] above). They provide useful context to the more recent cases, but relate to a question that, having regard to the Crown's acceptance of Ms Woutersz' plea, is not live in this case.
Earlier cases - "inherent cause" of abnormality causing impairment
197. In R v Tumanko (1992) 64 A Crim R 149, the NSW Court of Criminal Appeal concluded that an inherent cause is to be distinguished from "disabling passion of an ephemeral kind". In that case, the offender killed his girlfriend in a "jealous rage". Psychiatrists described him as in a state of disassociation, which some of them linked to an underlying personality disorder. The Court declined to find that the possibility of a manslaughter verdict by reference to an abnormality of mind was not properly put to the jury.
198. In the course of considering the appeal, Badgery-Parker J, with whom Gleeson CJ and Clarke JA agreed, noted that where an inherent cause of abnormality of mind was relied on, it must be shown to have "the quality of permanence or endurance" (at 162). His Honour went on:
An inherent cause is one which inheres in the accused person - "existing in something as a permanent attribute or quality", a definition advanced in the Shorter Oxford Dictionary, was held most aptly to indicate the true meaning of an inherent cause in this respect for the purpose of this section. Thus, for example, abnormality of mind will include brain damage due to the long-term deleterious effects of the consumption of alcohol or drugs, but not a mere temporary state of current intoxication.
(Citations omitted)
199. In R v De Souza (1997) 41 NSWLR 656, the NSW Court of Criminal Appeal determined that "the effect of anabolic steroids in altering the function of brain cells" was not to be regarded as an "injury" for the purpose of the relevant provision, despite evidence given at the trial that anabolic steroids changed the operation of brain cells in a way that differed from intoxication caused by alcohol or narcotics use.
200. The later NSW cases relate to s 23A of the NSW Act in its current form (at [143] above).
201. R v Potts [2001] NSWSC 753 involved a person who had been found guilty of manslaughter on the basis of evidence that he had killed his father in "the early phase of a relapse into" schizophrenia (from which he had suffered for up to 25 years), possibly brought on by cannabis use (in that cannabis might have reduced the efficacy of his already low-level medication). Hidden J, on sentencing, did not mention Mr Potts' use of cannabis as relevant to his culpability, but found that he would not be a danger to the community so long as he complied with an appropriate treatment regime and avoided drug abuse. On this basis Mr Potts was sentenced to seven years imprisonment (reduced from nine years to reflect an early offer to plead guilty to manslaughter) with a non-parole period of three years nine months, a period apparently shorter than the "usual" non-parole period required in NSW at the time.
202. In R v Mabbott [2002] NSWSC 502, Ms Mabbott had killed her step-brother, with whom she had been in a de facto relationship for several years. She was found to have been suffering a "schizophrenic illness" at the time, and possibly paranoid delusions. She had a long history of cannabis and heroin use, and had been hospitalised with psychotic symptoms, some months before the killing, after having taken a large quantity of amphetamines. The expert witnesses said that Ms Mabbott needed long-term psychiatric treatment as well as support in abstaining from drug use. She was sentenced to seven years imprisonment with a non-parole period of three and a half years (again an unusually short non-parole period).
203. In R v Gagalowicz [2005] NSWCCA 452 (Gagalowicz), the offender had killed one of his housemates during an argument relating to the supply of drugs. The sentencing judge found that the Mr Gagalowicz, a person with a long history of drug abuse, had at the time of the killing been psychotic. Mr Gagalowicz had suffered a drug-induced psychosis in August 2002, after which he was involuntarily detained for some months. The sentencing judge said:
I do not doubt that this condition returned when he recommenced his use of amphetamines either later in 2002 or early 2003 and that he was suffering from the psychosis which then re-emerged at the time of the killing ...
204. On appeal, the Court increased his sentence to 10 years imprisonment with a non-parole period of 6 years. There was no challenge to the finding of manslaughter, despite the role of drug use in the recurrence of the psychosis.
205. Specifically, there was no challenge on appeal to the sentencing judge's conclusion that, when Mr Gagalowicz resumed amphetamine use in late 2002 or early 2003, the originally drug-induced psychosis re-emerged and "the resulting impairment was so substantial as to warrant the reduction of his crime to manslaughter" (at [26]).
206. The sentencing judge noted that Mr Gagalowicz had been introduced to drugs at a relatively early age and at a time of crisis in his personal life (referred to by the Court at [30]). The Court of Criminal Appeal said (at [37] to [38]) that the sentencing judge erred in treating Mr Gagalowicz's drug addiction as a mitigating factor in determining his culpability (having regard among other things to the opportunities that Mr Gagalowicz had wasted to address the addiction). However, the Court also said (at [37)) that the sentencing judge's comparison of Mr Gagalowicz with "a mature recreational drug user" was irrelevant (and therefore his Honour's discretion had miscarried) because:
it would not have been an aggravating factor of the offending if [Mr Gagalowicz] had been a mature recreational drug user.
207. The apparent conclusion that the circumstances in which Mr Gagalowicz acquired his drug addiction could not mitigate or aggravate his culpability for the killing, coupled with the apparent absence of any evidence that Mr Gagalowicz's "underlying condition" had its origin in anything other than his long history of drug abuse, seems to imply that once an underlying condition and a resulting abnormality of mind have been established as required by s 23A of the NSW Act, the cause or origin of that condition and that abnormality are not relevant in assessing culpability (at least to the extent that the cause or origin is drug-related).
208. In the current case, the Crown submitted at one point that the concept of culpability is not affected by mitigating or aggravating factors, and there may be some truth in this view depending on how strict an approach is taken to the concepts of "mitigating" and "aggravating" factors; however, this does not in my view undermine a reading of Gagalowicz as authority for the proposition that, having found that Mr Gagalowicz was sufficiently impaired to warrant a manslaughter verdict, how Mr Gagalowicz acquired the drug addiction that contributed to his mental impairment was not relevant in determining his culpability.
209. In R v Antaky [2007] NSWSC 1047 (Antaky), the offender had in October 2005 been called to a house by a relative who told him that the victim, who was already known to Mr Antaky through family connections, had been assaulting, and possibly killing, other members of his extended family. Mr Antaky happened to have a revolver with him and, on entering the house, immediately fired five shots at the victim.
There is no doubt that prior to the occasion of the shooting the Prisoner had experienced some emotional or psychological problems. There was evidence I accept that he has suffered from a number of panic and anxiety attacks, agoraphobia and/or claustrophobia and then, from no later than the beginning of June 2005, suffered from depression and, for this and anxiety was being treated with Zoloft.
211. His Honour subsequently said, at [35] and [36]:
It is implicit in the expressions "substantially impaired" and "impairment ... so substantial as to warrant liability for murder being reduced to manslaughter" that there will be variations of degree. Some impairment may be gross, some may only just fall within the description of "substantial" so as to warrant the reduction. ...
In this case I am not persuaded that the impairment is more than marginally above the bottom of the scale. Indeed, I am satisfied that it is not.
212. Mr Antaky was sentenced to 10 years imprisonment with a non-parole period of six years.
213. In R v Dowley [2009] NSWSC 722, the offender began showing signs of mental illness before 2000, and was diagnosed in 2001 as suffering from a mental illness, "being a delusional disorder of a paranoid type". He was prescribed medication, but some time from 2000, against the background of a disintegrating relationship, he had begun using Ice. In 2002 he was diagnosed with schizophrenia, and was advised to refrain from drugs and alcohol and continue to take anti-psychotic medication. Mr Dowley stopped taking his medication four months before killing his partner in a ferociously violent attack. Expert witnesses said that Mr Dowley was "acutely mentally ill, notwithstanding the effect of any additional amphetamines taken on the day of the offence" (at [30]), and that the disinhibiting effect of drugs and mental illness both had a role (at [31]).
214. Although the sentencing judge accepted the prosecutor's submission that Mr Dowley's criminal history should have alerted him to the risk of violent behaviour from neglecting prescription medication and using illicit drugs, it is not apparent from the sentencing remarks that this was seen as relevant to culpability, as distinct from relevant to the assessment of the risks posed by Mr Dowley's eventual return to the community.
215. At [31], the sentencing judge recorded that:
...Dr Westmore expressed the opinion that the drugs which the offender had taken would have engendered "a state of disinhibition", ice being associated with "poor judgment, impulsiveness and aggressive behaviour". However, he concluded that the offence occurred "principally because of his mental illness which was precipitated and/or aggravated by his use of the illicit drugs".
216. The sentencing judge noted the ferocity of Mr Dowley's attack on his partner, and went on:
36 That said, it is clear that the offence was to a large extent the product of acute psychosis. The opinions of both psychiatrists are supported by the very ferocity of the attack, the offender's curious and irrational behaviour on the day of the killing up to and after his arrest, and the obvious hallmarks of mental illness observed after his entry into prison custody. While neither Dr Westmore nor Dr Nielssen in their recent reports were prepared to assign the degree of his mental impairment to a position within a notional scale, I am satisfied that it was considerable. This, of course, is relevant to the assessment of the offender's culpability and the need for the sentence which I pass to reflect considerations of deterrence.
37 Nevertheless, as the Crown prosecutor pointed out in submissions, the case highlights the tension which can arise in matters of this kind between general and personal deterrence: between the leniency which mental illness might afford an offender, on the one hand, and the legitimate function of sentencing in protecting the community, on the other. He referred to the offender's criminal history and noted, correctly, that it should have alerted him to the risk of violent behaviour if he neglected prescription medication and used illicit drugs. Moreover, the Crown prosecutor submitted, despite his compliance with a regime of medication while in custody, one could not be confident that that risk would not come home upon his release into the community.
217. In relation to the significance of community protection in sentencing Mr Dowley, his Honour quoted Dr Westmore's opinion, at [34] as follows:
The history indicates that Mr Dowley has demonstrated extremely disturbed behaviour in the context of illicit drug use and his mental illness. If at any time he returns to any form of illicit drug use or he redevelops acute symptoms of his mental illness, then his potential risk to the community, in view of his previous history, should be considered to be high. Obviously much will depend on what specific symptoms he develops but the presence of paranoid symptoms will be particularly important and relevant to the issue of future dangerousness.
218. Mr Dowley, who had pleaded guilty to manslaughter, was sentenced to 11 years imprisonment, reduced from 13 years for his plea of guilty, with a non-parole period of 7 years.
219. R v Hollaway [2013] NSWSC 218 concerned a woman who killed her partner's friend, whom she believed was attempting to rape her, in the grip of a drug-induced psychosis (involving cannabis and methamphetamine) that may also have reflected underlying schizophrenia, a schizoaffective disorder or a personality disorder. Ms Hollaway's substantial impairment reduced but did not negate her moral culpability. Provocation and, possibly, excessive self-defence were also raised as relevant in assessing the objective seriousness of the offence. Price J noted that Ms Hollaway's future behaviour depended significantly on abstaining from alcohol and drug abuse, and that fact, and the need for mental health supervision, justified departing from the statutory ratio set for non-parole and parole periods. His Honour noted and endorsed the Crown's call for parole conditions including, among other things, a requirement to submit to blood and alcohol testing.
220. Price J also noted that the risk of psychosis re-emerging if Ms Hollaway resumed alcohol or other drug abuse meant that, despite her mental illness, there remained a role for specific deterrence in sentencing her. Ms Hollaway was sentenced to a total sentence of five years and four months imprisonment with a non-parole period of three years.
221. In R v McKnight (No. 4) [2014] NSWSC 1029 (McKnight), Campbell J sentenced Mr McKnight for a killing committed, his Honour found, during a psychotic episode arising from chronic schizophrenia, which had emerged when he was a teenager with a history of cannabis use. Over time he had failed to take prescribed medication and continued to use cannabis, and in the lead-up to the killing, he had suffered acute symptoms including delusions and auditory hallucinations. At the time of the killing, he had been drinking heavily for several hours and had also smoked some cannabis. His Honour noted that in determining whether his mental illness rendered him impaired to the necessary degree, Mr McKnight's self-induced intoxication was to be disregarded.
(a) the reduction in culpability deriving from Mr McKnight's psychiatric illness;
(b) that this might reduce the relevance of general or specific deterrence; but
(c) that an offender's mental impairment does not necessarily lead to a shorter sentence.
223. Furthermore, his Honour said, in this case specific deterrence was relevant because of Mr McKnight's breach of a previous good behaviour bond, his history of non-compliance with medication, and the abuse of alcohol and illicit drugs which had contributed to his offending. His Honour considered the importance of a relatively long period of parole supervision in protecting Mr McKnight against a relapse to substance abuse and non-compliance with treatment. After a 25% sentence reduction in recognition of an early offer to plead guilty to manslaughter, his Honour sentenced Mr McKnight to eight years imprisonment with a non-parole period of six years.
224. In Catley v R [2014] NSWCCA 249 (Catley), the appellant, at a trial for the murder of his mother and for animal cruelty offences arising from the killing of her two cats, had been found guilty of manslaughter because of a substantial impairment of his capacity to control himself. Mr Catley had been a long-term cannabis user and had consumed a substantial amount of alcohol in the hours leading up to the killing. There was expert evidence that he had suffered depression and some "paranoid-type symptoms" before the killing, and a diagnosis of first-onset psychosis was made by a Justice Health psychiatrist several days after the killing.
225. The jury returned a verdict of manslaughter, and the Court of Criminal Appeal (RA Hulme J, with whom Bathurst CJ and Johnson J agreed) dealt with the verdict on the basis that the jury had found that the appellant's mental responsibility was substantially impaired. At first instance, Mr Catley had been sentenced to a total sentence of 11 years with a non-parole period of 8 years; this was not disturbed on appeal.
226. In Catley, the Court of Criminal Appeal considered an appeal ground described as follows:
His Honour erred when assessing the applicant's moral culpability for the manslaughter offence by failing to take into account his mental condition on the basis that a reduction of his culpability had already been taken into account in relation to this by reason of him being found guilty of manslaughter rather than murder.
227. The Court rejected this ground. After discussing the extent and causes of Mr Catley's impairment (essentially, a psychosis arising from some kind of psychotic illness), the Court concluded that the trial judge's findings:
...do not disclose an impairment that went significantly beyond what was required for a finding of substantial impairment.
228. That is, the Court explicitly recognised that in some cases, the level of an offender's impairment would significantly exceed the level of impairment required for the manslaughter verdict, and this would further reduce the offender's culpability.
229. In R v Jenbare [2016] NSWSC 1317 (Jenbare), Mr Jenbare had killed his wife. He was sentenced to 9 years imprisonment, reduced from 12 years because he had at an early stage offered to plead guilty to the offence of which the jury ultimately found him guilty, and with a non-parole period of 5 years.
231. Ukropina v R [2016] NSWCCA 277 (Ukropina) involved an offender who killed his 29year-old daughter in the course of an argument. At the time he had been suffering for several months from severe depression and repeated anxiety attacks. In the week before the killing he had been admitted to a hospital emergency department, where he was diagnosed with major depression with features of melancholia and prescribed anti-psychotic medication.
232. On appeal, the Court of Criminal Appeal (Hoeben CJ at CL, with whom Bellew J and Hidden AJ agreed) concluded that the sentencing judge had erred in assessing that the appellant "...was not impaired to an extent that was significant beyond that required to make out the partial defence of substantial impairment by abnormality of mind". The Court reduced the sentence of 6 years and 9 months with a non-parole period of 4 years and 9 months to 6 years with a non-parole period of 4 years.
233. The Court in Ukropina, in reaching the conclusion quoted at [232] above, appears to have approved a proposition to the effect that, once mental impairment sufficient to found the diminished responsibility verdict has been identified, the extent if any to which the level of impairment exceeds that sufficient level of impairment is one of many relevant considerations in sentencing, and is a consideration relevant to both:
(a) the objective seriousness of the offence; and
(b) the subjective circumstances of the offender.
234. In R v Hart (No 5) [2016] NSWSC 1612 (Hart), Campbell J sentenced the offender for the killing of his friend. He was sentenced to 8 years imprisonment, reduced from 10 years for an early guilty plea, and with a non-parole period of 5 years and 4 months. This was slightly lower than the statutory ratio, reflecting special circumstances relating to the progress of proceedings after Mr Hart was charged.
235. Mr Hart had been found guilty of manslaughter rather than murder on the basis that his mental capacities were impaired by an abnormality of mind identified by his Honour as a substance-induced mental disorder. Mr Hart had been using Ice for some time before the killing, and had become increasingly delusional and clinically paranoid. He had also smoked Ice on the day of the killing, but the sentencing judge noted at [19] that this drug use, as distinct from the drug-induced underlying condition, "needs to be put to one side when determining culpability". This seems in the case of Mr Hart to have been intended to point out that the intoxication at the time of the killing provided no reduction in culpability.
236. Campbell J implied at [56] that Mr Hart's intoxication at the time of the offence was aggravating (in identifying it as neither mitigating nor neutral), but this comment did not refer to the role of drug use in the development of his underlying mental condition. There was no suggestion that his drug use might have increased his culpability in that way.
237. There is a superficial logic, which is initially attractive, to the Crown's submission (at [168] above), that an offender's moral responsibility, if any, for the abnormality of mind that has impaired his mental responsibility may be a relevant sentencing consideration in relation to culpability. However, the proposition, analysed in the absence of any authorities, raises many questions which are not easily answered, and nor does it seem to be supported by the approach taken in similar cases.
If there were no contribution whatsoever by Ms Woutersz to her behaviour on that day that would be less morally culpable than if there were behaviour on her behalf that led to that behaviour. This is essential for this reason, because that behaviour, the drug taking, needs to be factored in as part of the sentence, her contribution to that.
239. This proposition was described by the Crown as "self-evident". As far as it goes, the proposition may well be self-evident to those to whom use of alcohol or certain illicit substances is self-evidently immoral, but it is not apparently self-evident to the law, which persists in drawing distinctions that are hard to explain on anything that could be called moral grounds between the various mind and body-altering substances used by human beings, for instance, tea, coffee, alcohol, tobacco and illicit drugs (a class that differs from place to place and time to time and may include drugs with very different effects on the user's mind and behaviour).
240. The more immediate difficulty for the Crown is that, in the context of a finding that a person was sufficiently impaired to justify a manslaughter verdict instead of a murder verdict, the authorities suggest that what is relevant in assessing the person's culpability is the degree of impairment, not the origins of the impairment.
241. This is not the occasion for an extended philosophical discussion, but what seems to me self-evident is that looking for the real origin or first cause of a mental impairment is so fraught with problems that it could produce nothing on which an assessment of culpability could fairly be based.
242. For instance, the impairment may have emerged many years earlier, or only recently. The true origins of the impairment may be unknown and hardly guessable even to the experts. Perhaps more importantly, it is hard to see that a decision made many years ago, or a series of decisions made over time, can be treated as increasing a person's culpability for a particular action which could never have been in contemplation when some or all of those first decisions were made and which, by definition, is committed by the person while mentally impaired. The problem is even more obvious if those earlier decisions were made by a person with no reason to suspect the effect of the decisions on his or her mental health, let alone to anticipate the particular consequences that would eventually emerge from his or her mentally impaired condition.
243. The theoretical difficulties may be less substantial if the "mental impairment" is said to arise directly from substance use shortly before the killing. I can see no obvious problems with the proposition that a person who, knowing that the use of a substance renders him or her a danger to others, deliberately uses that substance to inspire him or her into acts of violence, is culpable in respect of such violence. However, in a case of that kind, the "mental impairment" claimed may in fact be no more than intoxication, and accordingly not such as to justify a manslaughter verdict anyway.
244. There is also a problem in the proposition, implicit in the Crown's submissions, that the use of intoxicating substances (legally or illegally) is self-evidently an immoral act, and that this may increase the user's culpability even where the user has had no idea of the risks to his or her mental health, whether in general or because of his or her particular vulnerabilities, and even when it is a person's particular mental health vulnerabilities that might have drawn him or her into that substance use in the first place.
245. This raises the further question whether, for the purposes of an assessment of culpability, it is also "self-evidently" immoral for a person with identified mental health problems to stop or reduce prescribed medication (which may have unpleasant side-effects), whether or not the person has any idea that this may make them a danger to others. In other words, is deliberate use of intoxicating substances more immoral than deliberate abstinence from substances with other kinds of impacts on a person's health and comfort?
246. There may be scope to consider a more limited proposition relating to the culpability of a person who, while mentally competent, chooses to use substances that the person knows may make him or her a danger to other people, or not to use substances that may prevent him or her from becoming such a danger, with the result that the danger materialises and another person suffers; the moral issues raised by such a case are clearer, even if the answers are not necessarily self-evident. However, that is not this case, and that discussion can be left for another day.
247. As well, the Crown submitted that s 33(1)(i) of the Crimes (Sentencing) Act could be relied on to permit an investigation of Ms Woutersz' role in the development of her mental impairment. That provision requires a sentencing court to take account, to the extent that it is relevant and known to the court, of "the degree of responsibility of the offender for the commission of the offence".
248. This provision is applied in various circumstances. For instance, it is commonly referred to in cases in which there was more than one person involved in the commission of an offence, so as to require an assessment of the respective culpability of the person to be sentenced and others involved in the offence.
249. This provision may also provide, in a case not involving the reduction from murder to manslaughter, a basis on which an offender's mental condition may be considered in sentencing as it affects the offender's culpability, although that matter is also referred to in ss 33(1)(m) and 33(1)(t), and is not otherwise excluded from consideration (see ss 33(3) and 34).
250. Other matters relevant to an offender's degree of responsibility, such as whether the offender was provoked or entrapped, and whether he or she was intoxicated at the time of the offence, and the circumstances in which he or she became intoxicated, are also the subject of separate mention in s 33(1).
251. However, the fact that s 33(1) may permit an inquiry into an offender's mental condition at the time of an offence for the purpose of assessing culpability does not obviously invite an inquiry about the offender's responsibility, not for the commission of the offence but for that mental condition (in contrast to the operation of s 33(1)(p) in relation to intoxication and the offender's responsibility for that condition). The Crimes (Sentencing) Act, deals explicitly with intoxication and the circumstances in which the offender became intoxicated, but it does not apparently require a further inquiry into more remote circumstances. For instance, an offender who was intoxicated because his drink was spiked would presumably not also need to address his responsibility for entering the establishment where the drink happened to have been spiked.
252. In relation to any offence, there are multiple decisions taken by an accused in the course of his or her life before the offence that, if not made, would or might have avoided the eventual commission of the offence, but it would be entirely inappropriate to hold the offender to account for all of them, as distinct from holding the offender to account for the actual commission of the offence. For an offence in relation to which the offender's culpability is reduced by mental impairment at the time the offence is committed, it would be even less rational to attempt to judge the offender's culpability by reference to decisions of the offender that could never conceivably have related to the circumstances of the offence but were only ever relevant, or possibly relevant, to the development or emergence of the mental impairment.
253. I am satisfied that s 33(1)(i) of the Crimes (Sentencing) Act does not require an inquiry into Ms Woutersz' contribution to the mental impairment that affected her when she killed her mother.
254. The question whether, if information about an offender's contribution to her mental impairment is put before the court, the court is required to consider it, is more difficult. However, the authorities are in my view clear that, where mental impairment permits a manslaughter verdict rather than a murder verdict, an offender's culpability may be different depending on the level of impairment but is not to be increased or reduced by reference to the offender's contribution to that impairment. It would be curious if a generic provision in sentencing legislation were read as providing a back-door method of overriding the authorities concerning a particular peculiarity of the law about murder and manslaughter.
255. In summary, I accept that evidence of the kind put before me must be considered in this sentencing, but I do not accept that it must influence my assessment of culpability rather than influence my determination of an appropriate sentence more generally.
Absence of support for Crown submission - legislation and cases
256. Apart from what I see as the philosophical dangers and practical problems of embarking on the inquiry suggested by the Crown, the problem with the Crown's submission is that there does not seem to be anything in the material that has been brought to my attention (being the ACT legislation and the ACT and NSW cases discussed above) that supports the Crown's basic proposition, that an assessment of culpability requires an assessment of an offender's direct or indirect contribution, by the use of intoxicating substances, to the impaired state in which he or she committed manslaughter under s 14 of the Crimes Act.
257. Rather, the judgments in which intoxicating substances apparently did have a role in the generation of the mental impairment concerned either reject the proposition that the use of such substances was relevant to culpability (Gagalowicz), or simply do not consider substance use in determining culpability (eg Potts, Dowley, Hollaway and McKnight).
258. I am satisfied that there is no basis, either in law or logic, on which to conclude that it would be relevant in determining Ms Woutersz' culpability to determine whether drug use triggered, or contributed to:
(a) the development of her mental impairment; or
(b) the acute psychotic episode during which she killed her mother.
259. As already noted, however, those matters will be relevant to other aspects of sentencing.
261. I am satisfied that the degree of Ms Woutersz' impairment is relevant to Ms Woutersz' culpability, and will be significant if it is found to be more severe than needed to permit the manslaughter verdict. A relatively less substantial impairment may have no significance in determining culpability beyond its effect of reducing the offence from murder to manslaughter.
A mathematical approach to determining culpability
262. The Crown's approach to the assessment of culpability in the context of mental impairment as described at [179] above has a curiously mathematical aspect. If the Crown is correct, the assessment of culpability would require that the measure of culpability (whatever that measure might be) is reduced:
(a) first, only by the proportion that reflects the proportionate role of Ms Woutersz' mental impairment compared with the role of Ms Woutersz' troubled relationship with her mother; and
(b) secondly, only by the proportion of the mental impairment that reflects the role of Ms Woutersz' underlying illness compared with the role of Ms Woutersz' drug use.
263. In other words, the reduction in Ms Woutersz' culpability would be a fraction of a fraction of her total culpability, that fraction representing only the contribution to the killing of so much of her mental impairment as is attributable only to her underlying illness. These somewhat metaphysical calculations would be particularly problematic in a case such as this one, when the basic proposition of s 14 of the Crimes Act, that Ms Woutersz' mental impairment "substantially impaired" her responsibility for the killing, has been accepted by the Crown in accepting Ms Woutersz' plea to manslaughter as an answer to the charge of murder (because a minimum value for the result of the proposed calculation has effectively already been set, the determination of the other values to be fed into the calculation would be significantly constrained).
264. If the Crown is correct in its submission, then the court would have to be able to find, for the purposes of s 14, not only that a mental impairment substantially impaired the offender's mental responsibility, but that a sufficiently substantial impairment could be entirely attributed to so much only of the mental impairment as was not attributable to drug use.
265. None of this kind of sophistry is easily found in s 14, or in the cases to which I have been referred. There is much that could be said about it in an appropriate context, but since in this case, as noted, the Crown has already accepted that Ms Woutersz was impaired to the necessary extent, there is no need to expand on what kind of process might need to be undertaken to make sense of the suggested dissection of the various causes of the killing and of the mental impairment involved.
266. Furthermore, the Crown's proposed approach seems to be inconsistent with the words of s 14; that section refers to an abnormality of mind substantially impairing a person's mental responsibility for his or her actions - it does not qualify the abnormality of mind by reference to how it has arisen (apart from the effective exclusion of intoxication from the description of the abnormality of mind), and it does not qualify the abnormality of mind, or the test for a substantial impairment, by reference to the circumstances in which that abnormality of mind happened to surface and to lead to the killing.
267. Both the ACT cases, and most of the NSW cases, considered above have involved:
(a) offenders who had some kind of relationship with the victim, whether as romantic or business partner, close or distant family member, housemate, friend or acquaintance; and
(b) killings committed at a point when the relationship was under immediate strain, whether arising from an immediate argument or similar incident or during a generally difficult period in the relationship.
268. The sentencing remarks routinely include a description of the pre-existing relationship and the precipitating incident. However, I have not been able to identify any attempt to reduce the assessment of the level of impairment by an analysis or assessment of the pre-existing level of conflict between offender and victim. In some cases provocation may be a factor, but it is not treated as reducing the significance of the offender's impairment (eg Antaky and Hollaway).
269. I cannot find any indication in the cases that the existence of such conflict, whether longstanding or emerging suddenly, is relevant to the offender's culpability, as distinct from relevant as part of the total circumstances of the offence. Once the killing has been found, because of the offender's mental impairment, to fall in the space between a killing for which the offender has no culpability (because of severe mental impairment) and a killing for which the offender can be held largely or entirely responsible, there seems little sense to be made out of an assessment of whether the offender had a negative view of the victim (either generally or at the time of the killing), except where this is relevant to a separate factor such as provocation, which may reduce rather than increase the objective seriousness of the offence.
270. I reject the proposition that, determining the level of a person's mental impairment at the time of a killing, the level must be discounted by reference to any possible "rational" explanation for the particular killing.
271. I consider that none of the findings sought by the Crown about the nature of the relationship between Ms Woutersz and her mother could be taken into account to increase (or reduce) Ms Woutersz' culpability.
272. I am satisfied that when she killed her mother, Ms Woutersz was suffering from an abnormality of mind reflecting an inherent cause in the nature of schizophrenia that substantially impaired her responsibility for the killing.
273. That finding is generally supported by the various psychiatrists who have provided expert reports, and in particular by her treating psychiatrists Dr Samuels and Dr Barker.
274. All the psychiatrists consider that Ms Woutersz was experiencing a psychotic episode when she killed her mother. Even Professor McGregor does not seem to dispute that Ms Woutersz was psychotic when she killed her mother.
275. I am satisfied beyond reasonable doubt that Ms Woutersz was in the grip of an acute psychotic episode when she killed her mother.
276. None of the witnesses (including Professor McGregor) asserts that Ms Woutersz was intoxicated (whether involving Ice or any other intoxicating substance) at the time of the psychotic episode in which she killed her mother.
277. Furthermore, the evidence about Ms Woutersz' drug use in the month or so before the killing (the period that, in some reports after the killing, she identified as the period before the killing for which she had been "clean") is inconsistent. Apart from Ms Woutersz' own inconsistent reports, the report of the 23 September discussion with the mental health nurse in Perth (at [43] above) does not suggest any intention on Ms Woutersz' part to abandon drug use, but the account of her behaviour when she returned to Canberra (at [49] to [59]) above) does not seem to match Professor McGregor's description of methamphetamine intoxication at [55] above), although it does seem to have something in common with other descriptions of a presentation consistent with schizophrenia.
278. Most of the expert reports offer differential diagnoses of an underlying functional illness (in the nature of schizophrenia, Bipolar Disorder, or a Schizoaffective Disorder) aggravated by drug use, or a drug-induced psychotic disorder (distinguished from a "simple" psychosis reflecting intoxication).
279. Dr Westmore offered differential diagnoses of "drug induced psychosis or possibly another psychiatric illness, such as schizophrenia, Bipolar Disorder or a Schizoaffective Disorder, which has been aggravated/exacerbated by drug use".
280. Dr Nielssen offered diagnoses of schizophrenia or drug-induced psychosis. However, he concluded:
She has the mental illness schizophrenia, which is known to produce a pattern of abnormality of mind because of an underlying abnormality of neurological function.
281. Professor Greenberg, in his second report, noted the following possibilities (at [108] above):
(a) a drug-induced psychosis with residual amphetamine-induced psychotic symptoms;
(b) a drug-induced psychosis with fabricated hallucinatory symptoms (malingering) for primary gain (in this case, to allow a plea of not guilty by reason of mental impairment);
(c) a chronic schizophrenic disorder with history of associated drug use, which is now treatment resistant.
282. Dr Barker, Ms Woutersz' treating psychiatrist for over 6 months after the killing, diagnosed schizophrenia, and reported ongoing symptoms during the period in which he was treating her.
283. In his second report, prepared for the sentencing hearing, Dr Barker did not express any doubts about his earlier diagnosis, but reported that Ms Woutersz "continued to experience ongoing auditory hallucinations during her incarceration", that she has begun treatment with clozapine, a potentially dangerous medication regime which requires careful monitoring, and that she "continues to experience ongoing auditory hallucinations".
284. Dr Barker reported a "significant deterioration" in Ms Woutersz' mental state in early March 2017, despite her being compliant with the then prescribed anti-psychotic depot medication, and negative results from drug testing at the time. He went on to suggest that now that Ms Woutersz is taking clozapine, any future acute deteriorations should be less intense. Dr Barker reported that Ms Woutersz has not yet "achieved a period of sustained remission", but notes that:
adequate response to treatment with clozapine can take up to one year (Lieberman et al, 1994), and it is possible that Ms Woutersz will continue to experience improvements in her psychotic symptoms over the new few months.
would not currently characterise her illness as either dormant or in remission although it is possible that this could occur in the future.
286. Dr Samuels, Ms Woutersz' treating psychiatrist, diagnosed Ms Woutersz with schizophrenia, with a differential diagnosis of schizoaffective disorder. He concluded:
Although the use of illicit drugs is likely to have been one of the risk factors precipitating [Ms Woutersz'] mental illness, in my opinion, ... [Ms Woutersz] is suffering with a functional and enduring mental illness rather than a substance (drug) induced psychotic disorder.
287. Professor McGregor's opinion differs from those of the various psychiatrists in relation to the cause of the psychosis, but even Professor McGregor identifies the possibility that Ms Woutersz' condition reflected a "sensitized psychotic state resulting from a long history of heavy methamphetamine use", in which "a residual psychotic and agitated state" might have persisted long after a period of acute methamphetamine intoxication.
288. I am not satisfied that the acute psychotic episode during which Ms Woutersz killed her mother arose immediately from intoxication by methamphetamine or any other intoxicating substance, and on the evidence, I could not have been satisfied that Ms Woutersz' actions were the result of methamphetamine-induced intoxication.
289. I am satisfied on the balance of probabilities that Ms Woutersz was suffering from schizophrenia (or possibly another psychiatric illness) which had been aggravated or exacerbated by drug use, rather than a drug-induced psychotic disorder. Because I have concluded that the role of drug use in the development of Ms Woutersz' abnormality of mind does not increase her culpability, and is therefore not to be taken into account adversely to her, I do not see a need to be satisfied of that matter beyond reasonable doubt.
290. I am satisfied beyond reasonable doubt that the acute psychotic episode emerged from either an underlying functional illness (most likely schizophrenia), or an underlying mental condition, that was either aggravated, or caused, by Ice use over a period of two or more years before the killing.
291. In either case, the particular psychotic episode that became apparent on the day of the killing, but that seems to have been developing over at least several days before that, impaired Ms Woutersz' mental responsibility for the killing of her mother sufficiently to justify a verdict of manslaughter by reason of diminished responsibility.
292. I am satisfied by the evidence that Ms Woutersz had engaged in drug use at a high level for some time before the killing, certainly from early 2014 and possibly, although with some breaks, from 2011.
293. Although I have concluded that Ms Woutersz' responsibility for the development of her accepted mental illness, or of the acute episode of mental illness during which she killed her mother, is not relevant to her culpability (and therefore does not need to be found beyond reasonable doubt), it remains necessary to make findings about the contribution of drug use to the impairment that resulted in the killing, because the issue will be relevant to the ultimate sentencing disposition in this case.
294. For those purposes, I find that although Ms Woutersz' underlying illness might well have emerged in some readily diagnosable form over her lifetime, the particular timing of her illness, and development and severity of that illness as it emerged at the time of the killing, were significantly affected by her heavy use of illicit drugs, probably Ice in particular, over the previous couple of years and especially from about May 2014.
295. The question of the role of recent drug use in producing the acute psychotic episode in the course of which Ms Woutersz killed her mother raises slightly different questions. I am inclined to the view that Ms Woutersz' condition on 17 October 2014 owed more to her underlying illness than to a very recent use of drugs. The matters relevant to this view are as follows:
(a) The GP who saw Ms Woutersz on 9 October 2014 was concerned that she had a mental illness that was "being missed"; it seems unlikely that the GP would have reacted in this way if Ms Woutersz had presented with a clear case of Ice intoxication;
(b) there is no direct evidence of drug use from 13 October 2014 (the use of a dummy at times from then on could have indicated immediate intoxication, but on the scant evidence available to me may equally have indicated only ongoing symptoms resulting from earlier drug use);
(c) Ms Woutersz' behaviour and symptoms from the time she arrived back in Canberra do not exclude Ice intoxication, but seem to be at least as consistent with an acute episode of schizophrenia. I note in particular that except for the interaction with the mental health nurse at Canberra Hospital on 14 October, there is no evidence in the days before the killing of aggression, hostility or violence, or of ritualised behaviours. On the other hand, the evidence of Ms Woutersz' behaviour on her return to Canberra on 13 October, at [50] and [51] above, would be consistent with a schizophrenic presentation.
296. I am not satisfied, even on the balance of probabilities, that Ms Woutersz had used Ice very shortly before, or after, her return to Canberra.
297. I am also satisfied that at the time of the killing Ms Woutersz was more severely impaired than was necessary to found a verdict of manslaughter. For this assessment, I rely in particular on the details of the killing and of Ms Woutersz' behaviour in the immediate aftermath, and the many bizarre aspects of the killing, as described at [63] to [70] above. In particular I note:
(a) Ms Woutersz' attempt to cut her mother's hair while she was unconscious during an early part of Ms Woutersz' attack on her;
(b) Ms Woutersz' attempt to bury her mother in a planter box, and her subsequent abandoning of this attempt without making any other attempt to hide the body;
(c) Ms Woutersz' presentation when her father came home (in the kitchen, wearing only a G-string, and cooking eggs); and
(d) Ms Woutersz' lack of response to her father's questions about her mother, combined with her request to him to turn off the stove after she had retreated into her bedroom; and
298. I also note the description at [70] above of Ms Woutersz' presentation when she was first taken into custody, and the concerns about her mental health expressed by the police officer.
299. Having regard to some aspects of the killing as described above, I am satisfied having regard to this evidence that at the time she killed her mother, Ms Woutersz was seriously mentally impaired. I do not have the benefit of a numerical assessment of the kind provided to Crispin J in the case of Singh (at [189] above), and I do not propose to devise a scale myself, but I am satisfied on the balance of probabilities:
(a) that Ms Woutersz' impairment was more substantial than would have been necessary to justify the manslaughter verdict; and
(b) accordingly, that her impairment must be taken into account as reducing to some extent her culpability for the killing, even having regard to the fact that the offence she is being sentenced for has already been reduced to manslaughter because of that impairment.
300. The evidence available to me supports the proposition that over time there were tensions in the relationship between Ms Woutersz and her mother, and it may be that some of those tensions played out in the killing. On the other hand there is also evidence that Ms Woutersz' mother and father, and her extended family, provided continuing support to Ms Woutersz despite her distressing behaviour and, apparently, despite any indication on Ms Woutersz' part that she was trying to make changes. I note in particular the evidence of the family discussion the night before the killing, described at [59] above.
301. There is also evidence that many of Ms Woutersz' delusional beliefs concerned her mother - I cannot assess, however, whether her mother's prominent role in Ms Woutersz' delusional beliefs was likely to have reflected tensions in their relationship or simply the fact that, as in most families, Ms Woutersz' mother was an important figure in Ms Woutersz' life.
302. I find that there were ongoing tensions between Ms Woutersz and her mother, and an argument between them on the day of the killing. I do not find any evidence of premeditation on the part of Ms Woutersz (or, for that matter, provocation by Cheryl Woutersz).
303. Finally, I am satisfied that Ms Woutersz is in a much better condition mentally than she was at the time of the killing or for some time after that. Given Dr Barker's report, there is no basis on which I could find that her underlying illness is now "dormant" (if that is a technical term), but I can find that it seems to be largely controlled, and that such control is attributable to the treatment she is receiving for her illness and the (presumed) elimination of access to Ice or other illicit drugs.
304. In the course of the lengthy arguments required by this matter it seemed to emerge that the Crown's real concern was that it should be made very clear to Ms Woutersz, and perhaps also to those entrusted with her care in the future, that further use of Ice or other illicit drugs, or any failure to comply with her medication regime, could render Ms Woutersz a real and serious danger to the people around her.
305. To the extent that such conclusions emerge from the expert and other evidence, I do not have any difficulty with the proposition that this should be made clear in my sentencing remarks.
I certify that the preceding three hundred and five [305] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
R
Woutersz [2018] ACTSC 36
(1997) 41 NSWLR 656
(2011) 244 CLR 120