Wright v The Queen [2015] VSCA 333

Wright v The Queen [2015] VSCA 333 - VSCA 2015 case summary — Zoe

[29]

He was mostly compliant with prescribed medication until 2013 when he commenced using methamphetamine and heroin in varying combinations. He also took Quetiapine (Seroquel) in the past to assist with sleep.

Mr Wright confirmed he had continued to experience auditory hallucinations whilst using methamphetamine, although he was mostly able to either block them out or distract himself. He noted the voices, usually a female, told him to take drugs. He had also been afflicted by paranoia, mostly centered on beliefs that he was being listened to by 'bugs'. The level of psychotic symptoms reduced when he reduced or refrained from using methamphetamine.

Mr Wright commenced using cannabis in his mid-teens. He stopped for a period but resumed at age 25. He had persistently used cannabis until his arrest. He used various hallucinogens in his late teens. He used heroin for a period in his late thirties, resuming again dependently two years ago, coinciding with the commencement of prolific methamphetamine use. He consistently used up to [a] point of methamphetamine per day. He associated euphoria with methamphetamine use, but also aggressive tendencies during periods of withdrawal.

Mr Wright noted he experienced heightened libido and associated obsessive sexualized thinking whilst using methamphetamine. He specifically developed 'visions to do sexual stuff', including sexually driven crime, whilst using methamphetamine. He denied a history suggestive of sexuality confusion or sexual perversion when not under the influence of methamphetamine.

Mr Wright was rather awkward and vague in responding to questions regarding his altered mental state whilst using methamphetamine, consistent with feelings of shame and guilt. He confirmed he developed a fetish for [women's] lingerie. This lead to stealing [women's] clothes and lingerie from clotheslines, and on occasions he elected to wear the clothing underneath his own clothing. He also developed fantasies to commit a sexual crime. He developed ideas of breaking into a house and non-coercively engaging in sexual activity.

Mr Wright said auditory hallucinations 'planted the seed' to initiate the sexual crimes, as the voices told him 'get in quick'.[7]

[31]

He appears to have been reasonably mentally well from age 20 to 39/40.

Mr Wright has been significantly methamphetamine dependent for the last two years. He has also used heroin in a dependent pattern. Methamphetamine combined with the absence of antipsychotic medication has contributed to a significant decline in the stability of his mental health, and further contributed to committing the offence.

Mr Wright has a history of increase[d] sexual preoccupation whilst using methamphetamine. Methamphetamine appears to have generated the onset of an obsessive-fetish type sexual drive whereby he became motivated to access and often wear female underwear. Also, and more alarming, has been a history of intense sexual fantasies, experienced as imaginary sexual scripts, including the odd notion of finding a female stranger in a house during a burglary, leading to a fanciful consensual and non-coercive sexual interaction.

Mr Wright appears to have experienced a similar pattern of behaviour in 2013 leading to his arrest and incarceration. Dr Lester Walton obtained a remarkably similar history, although it did not include the detail of rape fantasies.

Mr Wright had used methamphetamine over a period of a month prior to the offence following a period of failed drug rehabilitation in Geelong. During this period he was not taking prescribed antipsychotic medication. He developed the onset of the sexually preoccupying thoughts and desires. He also experienced auditory hallucinations that appear to have interacted with the background intensifying sexual obsessiveness triggered by methamphetamine use.

Mr Wright indicated that he was afflicted with auditory hallucinations immediately prior to the serious sexual offence on 29th April 2014. The auditory hallucinations did not command him to commit the offence, but they were perhaps encouraging and persuasive, and in a complex manner, interacting with his rising sexual obsession.

Mr Wright was obviously mentally unwell during the period of offending, mostly due to the impact of methamphetamine, but combined with a lack of antipsychotic medication. His altered mental state was mostly attributable to methamphetamine, but he was also in the grips of a psychotic process. The elevated sexual preoccupation was the primary driver to the offending but the onset of auditory hallucinations further reinforced the compulsion to offend. He was not so impaired to not be able to understand the wrongfulness of his actions. His capacity to exercise reasonable judgment during the offending period was likely to have been significantly compromised. Notably he was immediately aware that he had committed a serious crime after raping the victim. His unstable mental condition should be considered to have reduced his moral culpability [for] the offending conduct to at least a mild extent.

Mr Wright's mental state has stabilized since being arrested and remanded in custody. He has resumed antipsychotic medication and he has remained abstinent from illicit drugs.

...

Mr Wright should be considered ... more vulnerable than a prisoner of normal mental health given he has a major mental illness. He has already felt quite vulnerable amongst mainstream prisoners and he could foreseeably be targeted during his sentence. He is likely to experience prison as more onerous given his mental illness. Prison may impact on his mental health, but currently he is managing satisfactorily. He indicated that he was significantly burdened by feelings of guilt for the crime.[8]

[59]

It is not in dispute that you have an established diagnosis of schizophrenia and that you have been significantly methamphetamine-dependent for the past two to three years. You have also used heroin. Methamphetamine, combined with the absence of antipsychotic medication, has contributed to a significant decline in the stability of your mental health. You have a history of increased sexual pre-occupation whilst using methamphetamine. Dr Deacon opined that:

Methamphetamine appears to have generated the onset of an obsessive fetish-type sexual drive whereby he became motivated to access and often wear female underwear. Also, and more alarming, has been a history of intense sexual fantasies, experienced as imaginary sexual scripts, including the odd notion of finding a female stranger in a house during a burglary, leading to a fanciful consensual and non-coercive sexual interaction.

...

Dr Deacon concluded that you were obviously mentally unwell at the time you offended, mostly due to the impact of methamphetamine, combined with your non-compliance with antipsychotic medication. Dr Deacon states:

His altered mental state was mostly attributable to methamphetamine, but he was also in the grips of a psychotic process. The elevated sexual pre-occupation was the primary driver to the offending but the onset of auditory hallucinations further reinforced the compulsion to offend. He was not so impaired to not be able to understand the wrongfulness of his actions. His capacity to exercise reasonable judgment during the offending period was likely to have been significantly compromised. Notably he was immediately aware that he'd committed a serious crime after raping the victim. His unstable mental condition should be considered to have reduced his moral culpability of the offending conduct to at least a mild extent.

It is not in dispute that you should be considered more vulnerable in gaol than a prisoner of normal mental health. Dr Deacon indicates that you have already felt quite vulnerable amongst mainstream prisoners and that you could foreseeably be targeted whilst serving a sentence. I accept that you are likely to experience prison as more onerous given your mental illness and that prison may impact on your mental health although, currently, this Court was told that you are managing satisfactorily.

The question of whether your unstable mental condition should be assessed as reducing your moral culpability has been extensively canvassed during the course of submissions. I am far from persuaded that this contention has been established. In my view, it is significant that your offending on 29 April 2014 displayed a considerable measure of premeditation and, further, that upon being interviewed by police, you acknowledged that your use of ice and failure to take your antipsychotic medication, was the trigger for your sexual fantasies.

You have shown over two decades that you can be law abiding when taking prescribed medication. Your offending is a product of abusing methamphetamine which you preferred to your prescribed treatment. You well knew that your use of methamphetamine was intimately connected to your aberrant sexual conduct and caused dis-inhibition. Nonetheless you persisted to abuse that drug despite residential treatment and awareness of its effect upon you. Your aberrant conduct was the subject of a record of interview with police on 27 March 2014. Yet within 23 days of that interview you broke into houses and stole women's underwear and 10 days later you raped [K].

I am not persuaded, on the balance of probabilities, that your underlying mental illness lessens your moral culpability. Further, even if this Court were to find that your moral culpability was lessened as a consequence of your mental illness, in my view, other countervailing sentencing considerations, including protection of the community, would prevail.[13]

[66]

The cases in Victoria which have applied proposition 1 of Verdins have, on the whole, taken the view that a causal connection needs to be established between the impairment of mental functioning and the offending for which sentence is to be imposed. As Maxwell P said in Carroll v The Queen:

Where reliance is placed on [Verdins] proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes - on the balance of probabilities - that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?

But nothing in Verdins suggested that the only way to establish a basis for a submission about reduced moral culpability was to show a causal connection. The case law shows that - for what, in our view, are quite understandable reasons - sentencing judges look for some kind of causal link in order to reduce the moral responsibility which is otherwise to be properly to be laid at the feet of the offender.

The court in Verdins identified a variety of ways in which courts had held that impaired mental functioning might reduce moral culpability, as follows:

Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of:

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.

As the court there said, this was a descriptive rather than a prescriptive list. It was expressly said not to be exhaustive. Only one of the items in that list - item (f) - referred to causal connection. In short, counsel making submissions on the basis of Verdins has always been in a position to contend that it is not necessary to establish a causal connection.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (127 paragraphs)

Parties

Cases Cited (4)