Monday 10 May 2004
REGINA v Luke Graham HOPKINS
Judgment
1 THE COURT: This is a Crown appeal under s5D of the Criminal Appeal Act 1912 against the sentence imposed upon the Respondent by his Honour Judge Phelan for an offence of aggravated sexual assault contrary to s61J of the Crimes Act 1900. The circumstances of aggravation were that the Respondent did maliciously inflict actual bodily harm on the victim.
2 His Honour imposed a sentence of two years with a non-parole period of six months. The maximum sentence is twenty years. The "standard non-parole period" under s54B of the Crimes (Sentencing Procedure) Act 1999, is ten years.
3 The events occurred in the early hours of Monday 19 May 2003 at the Respondent's home. The victim was a former girlfriend, with whom he had had a long term relationship which, after an interruption, had then recently resumed.
4 The victim was subjected to a course of violence at the hands of the Respondent. He picked her up and carried her into the lounge room and threw her against the lounge. He hit her across the face. He told her to take her pants off and threatened "If you don't do it I'm going to hit you again". The victim undid the tie of her pants. The Respondent pulled her pants off and forced her to the ground saying "This is what happens if you don't do what I tell you". He told her to open her legs and then inserted a cigar wrapped in plastic into her vagina. He forced her to pose for him whilst he took sexually explicit photos of her. He dressed her in his suit coat, Akubra hat and draped a Eureka Stockade flag over her. He hit her a number of times. He picked up an empty wine bottle. She ran to the door which the Respondent had locked. He threw the bottle at her. He took a hammer and rubbed the outside of her legs with the claw and then put the hammer between her legs.
5 His Honour referred to a litany of bizarre behaviour by the Respondent:
· speaking to the victim in what she described as "riddles … words that didn't make sense to me at all".
· making the victim lick coffee from the wall.
· dressing up the victim in a flag and ordering her to pose in different positions.
· forcing her to drink detergent.
· placing a knight from a chessboard on her mouth and other chess pieces on her hands and asking her to balance the pieces.
6 A neighbour came to the unit and saw the Respondent holding the victim's arms behind her back. She called the police. The police arrived and entered the premises. They took the victim to Tweed Heads Hospital. The cigar was removed from deep inside her vagina.
7 As a result of the offence the victim suffered bruises, grazes and contusions. Her right eye was so swollen that it caused the closure of the eye. A medical report outlined the significant extent of the injuries she suffered. The offence was degrading and humiliating to the victim. The insertion of an object into her vagina, which had to be medically removed, was particularly detestable. A Victim Impact Statement indicated the significant effect which the incident had upon the victim, both physically and emotionally. She was unable to continue to work, her university studies were affected, as was her social life, particularly her ability to develop a close relationship.
8 The sentencing judge described the offence in the following terms:
"The objective circumstances … remain very serious and must have been extremely frightening to the victim."
9 Nevertheless his Honour imposed a two year sentence with a non-parole period of six months. The reason for imposing so light a sentence, given the objective seriousness of the events, was the mental condition of the Respondent.
10 In his remarks on sentence his Honour noted that the Respondent had no criminal record of any significance. Furthermore he noted the victim herself asserted that the conduct of the Respondent on the day in question was completely out of character. She said in her victim impact statement: "Luke Hopkins had never been physically or sexually violent towards me before". A number of aspects of her statement indicated the irrationality of the Respondent's conduct on the day in question.
11 The Respondent had been involved in a severe motor vehicle accident in 1994. He had a period of three months of unconsciousness and thereafter a lengthy period of hospitalisation, which included treatment with psychotic drugs for his condition.
12 His Honour set out his findings on the Respondent's mental health history as follows:
"The Northern Rivers Area Health Service has recorded him as a patient since July 1996, when he was referred by his mother who was concerned by his aggressive and threatening behaviour. He was diagnosed as having attention deficit syndrome and a hyperactivity disorder which was treated with Ritalin until aged sixteen. He was first seen by Doctor Braganza, a psychiatrist, on 19 January 2001 with a history of changed behaviour since a motor vehicle accident. His mother described him as more erratic, depressed, and, to use her word, apparently psychotic. He had had six weeks of depression, he was teary and withdrawn and felt life was not worth living. The history given that he had had a temper prior to the motor vehicle accident but it was worse after, and also he was inclined to forgetfulness and could not concentrate. He was put on anti-depressant medication but was not compliant. On 28 March 2001, his mother had complained about him talking about things that made no sense and talking to himself. The doctor concluded it was evidence that he was harbouring a psychosis but that the exact nature of the latter was difficult to assess. He describes him a week later as being paranoid. On 30 March he was seen by the acute care team emergency and referred again to Doctor Braganza. He was admitted to the Richmond Clinic following increased paranoid delusions, for example, that he had been poisoned and because of aggressive behaviour and property damage. He was discharged on a community treatment order on 12 April. Between April and September 2001 he was case managed by the Community Mental Health Services. During this time, he remained stable. He entered into employment and maintained contact with Mental Health. On 11 March 2002, he was referred to the Tweed Community Mental Health Service by his parents, who reported increasing paranoia and hyperactivity. He was apparently diagnosed as having hypomania. In July of 2001, he apparently ceased his medication of his own accord. He was again admitted to the Richmond Clinic on 5 May 2002 and discharged on 9 May on a community treatment order. He continued with case management up until 8 January 2003, the Acute Care Services to provide assessment and follow-up.
Things again apparently deteriorated because on 11 May he had contact with the Acute Care Services following reports of his being unwell. He was monitored until 16 May and was seen by Doctor Braganza on 12 May with an over-active mind and a euphemic mood. It was shortly afterwards that the offence was committed.
There is before the court a statement of the Community and Court Liaison Services, reporting an assessment on 3 June 2003. This assessment was carried out on 28 May by Doctor J O'Dea, consultant forensic psychiatrist. Doctor O'Dea's notes indicated that he was suffering a manic episode which was then resolving. He was recommenced on both anti-psychotic and mood stabling medication and had been compliant with these. There had been a noticeable improvement in his mental state since starting the medication. At the time of the report, he was described as mildly elevated in mood and remained somewhat suspicious. There was no evidence of formal thought disorder or psychotic symptoms, although his insight into his illness was described as poor and his judgment as impaired. It was determined that he was not mentally ill or disordered in terms of chapter 3 of the New South Wales Mental Health Act.
The most significant document presented to the Court is the lengthy report of Doctor Robert Delaforce of 29 September 2003. After noting the prior accident history, he referred to his having completed all examinations for his electrician's apprenticeship and just had to work some more months to complete that apprenticeship. Since 1999 he had always been in employment, mainly working as an electrician though was between jobs at the time of the offence. The report noted that he had been in a de facto relationship from the age of sixteen years with the victim of the current offence. They had been separated for two years but had recently resumed the relationship, although they were not cohabiting. It was in that period his mental problems had become more apparent."
13 Doctor Delaforce's diagnosis was expressed in the following way:
"Bipolar one disorder, most recent episode, manic. The details he provided to me about the change in his behaviour about a week prior to the current offences were very consistent with the diagnosis of a manic episode. Prior to the current offences he had been treated since 2001 for bipolar disorder, both for a manic/hypomanic episode and major depressive episode. Since his imprisonment following the offences, he has been diagnosed with and responded to treatment for bipolar disorder.
…
At the time of the current alleged offences, Mr Hopkins was in a manic episode stage of his continued bipolar disorder. The manic episode represented his disease of the mind that resulted in his defect of reasoning, such that he could not calmly, rationally and appropriate reason in relation to the moral quality of the right or wrong in what he was doing. I would therefore support a use of the defence of mental illness (McNaughton Rules) for the current change. His excessive use of alcohol at the time probably contributed to some degree to his behaviour in the offences. Nevertheless that use alone would not cause him to act as he did. Instead it was his manic episode that caused him to act as he did. He felt influenced by a spirit related to a murdered rap singer, grandiose and all-powerful because he thought he had solved the mystery of that murder, and therefore for some reason he had power and control over the victim who somehow in some irrational manic state driven way he connected to the murder and the related styles of rap music. His behaviour during the night leading to the offences is typical manic behaviour, where he inappropriately interacts with his environment."