The offender's mental state
46 Dr Stephen Allnutt has provided a comprehensive and thorough report dated 26 October 2006. This contains a complete analysis of all of the clinical and psychiatric documentation relevant to the offender. It covers a period between approximately 1996 and the present time. It is a highly complex and, in some respects, confusing history. Fortunately, I am spared from the need to detail this history because of the general agreement between Dr Allnutt and Dr Bruce Westmore who has examined the offender from the perspective of the defence side.
47 The history, however, is illuminating because it focuses initially on the offender's mental condition between 1999 and 2002. It was during this period he was, on two occasions, found not guilty at trial by reason of mental illness. Paranoid behaviour, on the part of the offender, was reported, by his family as early as 1995. It appears that he had a troubled childhood and was brought up by his grandparents. He had, in fact, been born in Wollongong but was brought up in Sydney until he turned nine. He then moved to Tasmania. He manifested juvenile delinquent behaviour in his teens and was in trouble with police from about the age of 15. He was made a ward of the state in February 1992 when he was before the Devonport Children's Court in relation to an assault charge. As an adult, he came before the Devonport Court of Petty Sessions on a number of occasions in 1994, 1998 and 1999. He had an early history of substance abuse, and a diagnosis of possible ADHD, in childhood had been made. It seems that he excessively used both cannabis and dexamphetamine over a number of years and that the ingestion of these drugs may have been a significant factor in the onset of his later mental illness.
48 Early clinical examinations during 1999 and 2000 suggested that the offender was suffering acutely from paranoid schizophrenia, although later clinical assessment suggested this was not necessarily the situation. A brief extract from the clinical history during this early period will give the flavour of the situation, without descending into too much detail: -
"In a report dated 10 March 2000, Dr Wilcox noted that she at the time was caring for the defendant at Long Bay Hospital; her assessment was for the purpose of providing a report on his mental state at the time that robbery offences had occurred in December 1999. She noted that he came from a difficult childhood; his father was in custody throughout his childhood; his father was shot dead in 1994 and his uncle was serving a life sentence for his father's death; his learning was affected due to numerous moves; he had limited support in childhood; he described himself as a loner; throughout his teens he smoked marijuana regularly; he had used alcohol as self medication to quieten voices; he reported several years of paranoia; he believed that people were following him and trying to kill him…in Tasmania he was sniffing his father's ashes; he believed he was being taken over by his father's spirit; he said he imagined the voices were there to determine his daily activities and he would ask the voice whether he should do something; he had heard his father's voice telling him he had to commit the crimes while out one night…Dr Wilcox concluded that the offender suffered from paranoid schizophrenia."
49 The history records that on 16 May 2001 he was assessed for transfer to Kenmore Hospital, pending a determination by the Mental Health Review Tribunal. The offender went AWOL from Kenmore at the end of January 2002. During this time, he discontinued any medication, abused amphetamines, and lived and slept "rough". He committed the Commonwealth Bank robbery on 15 March 2002, and at least one other serious offence at about the same time.
50 The offender was back in custody by the end of March 2002. He was admitted to D Ward, the acute psychiatric section of the prison. He was placed on anti-psychotic medicine and again diagnosed with schizophrenia, although, later in the year, this diagnosis was doubted. Generally, throughout this time he was, as he has been for a considerable period, a forensic patient. On occasions, he was assessed as exhibiting psychotic symptoms, but on other occasions there was no evidence of psychotic symptoms. The anti-psychotic medication fluctuated with the offender increasing his complaints that the medication was affecting him adversely. It was apparent, at least to some of the clinicians who reviewed him, that he had fabricated or elaborated symptoms at some stage in the past. But it was generally believed that some type of psychotic disorder, or at least a serious personality disorder, was present.
51 The history records that, a few days prior to the death of the deceased he was interviewed by Ms Matsuo, a psychologist. She formed the view that the accused's risk of harm to others was high; and that he should be placed in a cell "one out". Ms Matsuo gave evidence during the sentence hearing and said that at times during this interview, he appeared to be extremely serious in relation to his homicidal urges. But at other times was quite "flippant" or "glib" in relation to the subject. Overall, the history records, Ms Matsuo was very concerned about the manifestation of these homicidal urges. He had asked her that he be kept away from other prisoners. He also told her that he had previously got away with pleading "not guilty" by reason of mental illness and that he had feigned symptoms of psychosis. The medical notes indicate that the offender had ceased taking Flupenthixal in December 2003 as this had been causing him to experience movement disorders. In April 2004, he was commenced on Olanzapine, which, for a time, appeared to help his mental condition.
52 By May 2004, Dr Wilcox now concluded that his psychotic symptoms had occurred in the context of an extreme Anti-social Personality Disorder with some borderline traits and illicit substance abuse, chiefly cannabis and amphetamines. But she now felt that he had never demonstrated a comprehensive picture of schizophrenia. On 31 May 2004, the offender told the Registrar that he did not want to be a forensic patient; and that the truth now was that he did not have schizophrenia. He had always "made up" the symptoms and he now wanted to come off his medication to prove that he was not medically ill. He also wanted to be moved out of D Ward. In August 2004, the offender told Dr Wilcox that if he had been on medication he would not have "committed the offence" in which he killed the deceased. This was because he said the medication kept him calmer and caused his judgment to be better. He also said the reason why he committed the alleged offence was because he believed the victim was a sexual offender and he detested inmates who had committed paedophilia or crimes against the elderly. It appears that, throughout the remainder of the year, at times the offender demanded medication and insisted that it was helpful to him. At other times, he was abusive and threatened staff. He suggested that the medication was causing significant problems to him. Throughout the whole time, there were however intermittent outbursts of aggression and paranoid behaviour.
53 Dr Westmore reported in December 2004 as to the condition of the offender. It was his recommendation that there should be a trial of discontinuation of the medication as it appeared possible that it was having a significant adverse affect on the offender's mental condition.
54 On 14 March 2005, Dr Wilcox noted the offender had given yet another version of events surrounding the death of the deceased. He claimed that he had been smoking cannabis about the time of the alleged offence; he was feeling paranoid. Immediately prior to the offence, however, he was feeling really good and he just snapped and assaulted the victim before buzzing for the prison officer. He did not feel remorse but recognised that "you are not allowed to do those things, not allowed to break the law". He told her "It is not my fault, I have a mental illness, I believed that people were trying to give me AIDS".
55 Dr Allnutt completed one of his earlier reports in March 2005 after an interview with the offender. Mr Heatley told him that he had, in the past, suffered a psychotic disorder; but did not believe that he was manifesting symptoms of a mental illness at the time that he was interviewed by Dr Allnut. During the middle of 2005, the offender's behaviour became more reclusive and aggressive. He was complaining about a conspiracy of doctors working together to torture him and make him go up to "the top gaol". In early November 2005, Dr Nielsen formed a tentative view that the offender was unfit to stand trial and that he had an acute exacerbation of his schizophrenia. On the other hand, in a report of 21 November 2005, Dr Allnutt concluded that the accused had a tendency to report mental illness symptoms in an exaggerated form, or to report their evidence for secondary gain. Dr Allnutt considered that this did not necessarily exclude the existence of an underlying psychiatric disorder such as schizophrenia. At the time, however, Dr Allnutt agreed that the offender should be regarded as unfit to stand trial.
56 By the middle of 2006, the general view of those doctors who had interviewed the offender in that period of time was that he was by now fit to stand trial. Dr Westmore interviewed the offender during the sentencing hearing in October 2006 and concluded once more that the offender remained fit for trial.
57 On 4 October 2006, Dr Allnutt had an interview with the offender. For the first time, on this occasion, the offender introduced the notion that he had been the subject of a sexual advance made to him by the deceased on the day of the killing. He also told Dr Allnutt that, on the Sunday prior to the offence, he had smoked cannabis. This had led him to believe that the person in his cell was going to beat him to death while he was asleep. He said that, on the following day, he felt terrible; he felt awful but he never thought about his cellmate. Dr Allnutt returned to Long Bay Hospital on 11 October 2006 and re-interviewed the offender. At the outset, Dr Allnutt was told by the offender that he had been lying to clinicians and also to Dr Allnutt. He said that Justice Health and the Department of Corrective Services were condoning "a shameful situation", that being the "Craig Behr tragedy". He said that what they were doing was preventing anyone from doing anything about it. All they had done, he said, was "to lock him in segregation , they didn't want to release him".
58 It was at this point in the interview that the offender repeated, in effect, remarks he had made to Danielle Matsuo, namely that he had "uncontrollable impulses of aggression" and that he felt "as though he was likely to attack someone". He denied that this was related in anyway to his not having contact with his son or his girlfriend. He said that he had simply killed the victim but he couldn't remember what had happened exactly. Dr Allnutt immediately pointed out that the offender had given a version of sexual advances having been made to him only a few days earlier. Dr Allnutt asked him why he was lying. The offender said "I don't know, you tell me". On this occasion, the offender said "I attacked him, he didn't do anything to warrant the attack". The offender specifically denied there had been a sexual advance. He said "I just decided to kill him".
59 This relatively brief analysis of a very long and complicated history given by Dr Allnutt leads me directly to the doctor's final opinion. In his evidence (as appears in his written report) Dr Allnutt made three points. First, in the present matter, little reliance can be placed upon the offender's own reporting of his symptoms and conditions. In that sense, he is quite unreliable. Secondly, an objective analysis of the plethora of information contained throughout the history of clinical reports and notes, although difficult to analyse conclusively, tends to demonstrate that the offender does have, in all probability, an underlying chronic psychotic disorder. The problem is not whether he has such a disorder; but rather when does he experience symptoms of the disorder? That, in Dr Allnutt's opinion, is anyone's guess. For example, the offender might experience symptoms and not report them because he has a secondary goal in mind; at other times he might not experience symptoms but feel that it is in his interests to report them as such; and at other times he may be telling the truth.
60 Thirdly, there exists undoubted evidence of potential full psychiatric symptoms at the time of the killing. The better view, according to Dr Allnutt, is that there was a psychotic process, underlying his feelings, of a homicidal nature. This chronic psychotic disorder is compounded by a manifest personality disorder, which is driven by elements of paranoia, egocentricity and anti-social irritability and aggression. In addition, the offender lacked real insight into his own problems and does not collaborate well with his doctors and nurses. For the same reason, he is not as reliable as a historian of his symptoms and does not accept treatment adequately at all times.
61 As I have said earlier, there is no real disagreement between this opinion of Dr Allnutt and that of Dr Bruce Westmore in this regard. Dr Westmore has seen the offender on a number of occasions and has provided approximately 12 reports, over many years, in relation to him. Dr Westmore's view is that the offender suffers from a chronic mental health problem and that, on the balance of probabilities, he was mentally ill at the time the killing occurred. Both doctors agreed that the nub of the substantial impairment affecting the offender at the relevant time was an impairment of his ability to control his urges and actions on the occasion he took the life of his fellow inmate. Both accepted that he had some ability to understand the nature and quality of his actions and, in particular, that they were wrong. This was particularly evidenced by the fact that he had been concerned to report the homicidal urges to Ms Matsuo several days before the killing occurred and by his request to be kept away from others.
62 It is perhaps unnecessary for me to state, but it should be recorded, that this analysis of the psychiatric evidence amply justified and explained the decision of the Director of Public Prosecutions to accept the offender's plea of manslaughter in full satisfaction of the indictment on the charge of murder. The offender is plainly a very disturbed young man, one whose personality and psychiatric problems are of the most complex kind. None of the psychiatrists have found it easy to diagnose, in absolute terms the full range of his psychiatric problems. All agree that the predominant flavour or theme of his presentation, and his thought content, is that of a paranoid and persecuted man. Dr Allnutt was prepared to concede that the offender is an unusual patient and, perhaps, a unique patient. Nobody seems to know precisely what is wrong with him; nobody seems to know when he is telling the truth or when he is not; and nobody seems to know exactly what to do with him in relation to his treatment and the possibility of future recovery. Against that background, it must be said, that a significant tragic factor in this case, tragic for the deceased, his family, and, for that matter, the offender himself, is that the Corrective Services Department permitted the deceased to be placed in the cell of a man who was in the implacable grip of an urge to kill someone. I shall return to this subject a little later.