The Queen v Gibson [2016] VSC 634 (24 October 2016)

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

THE QUEEN

and

JAMES WILLIAM COLIN GIBSON	Accused

JUDGE:	Croucher J
WHERE HELD:	Morwell (trial); Melbourne (plea and sentence)
DATES OF HEARING:	4-8 & 11-15 July 2016 (trial); 2 September 2016 (mention); and 23 September 2016 (plea)
DATE OF SENTENCE:	24 October 2016
CASE MAY BE CITED AS:	R v Gibson
MEDIUM NEUTRAL CITATION:	[2016] VSC 634

CRIMINAL LAW – Sentence following trial – Murder – Accused, aged 18, without warning, struck deceased to head with baseball bat at least twice, causing catastrophic brain injury and, ultimately, death – Accused floridly psychotic at time of attack – Defence of mental impairment rejected by jury – Verdict consistent with psychosis being drug-induced instead of as a result of schizophrenia – History of drug use and some mental instability but not of violent psychosis precipitated by drug use – Accused unaware that drug use would make him violently psychotic - Accused now diagnosed as suffering schizophrenia – Illness now largely controlled by antipsychotic medication – Youth – Limited prior criminal history – Some regret – Reasonable prospects of rehabilitation – Reduced weight to be accorded to moral culpability, deterrence, denunciation and just punishment because of psychosis – Protection of community and rehabilitation – Sentence of 15 years’ imprisonment with non-parole period of 11 years – R v Martin [2007] VSCA 291; (2007) 20 VR 14; R v Sebalj [2006] VSCA 106.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Thomson	Office of Public Prosecutions

For the Accused	Mr J. Kelly	Robert Davis

1 Late on Good Friday 2015, while inside a house in Tyers, James Gibson struck Glenn Sullivan hard, and at least twice, to the head with a baseball bat. The attack came without warning or provocation. Between the two blows, Mr Sullivan fell face-first to the floor and was rendered completely defenceless. When asked by his host Adam Charleston what he was doing, Mr Gibson, wearing an “odd” facial expression, said, “He killed my dad; I’ve seen it in the smoke.” Mr Charleston screamed at him. He left.

2 Mr Charleston ran to get help from his wife Helen Mackrell, who was at a friend’s home two doors up with her younger son Jack. Their elder son Lucas, who had also witnessed the attack, rang triple-zero. When Ms Mackrell arrived, Mr Gibson was standing by the passenger side of Mr Charleston’s car, as if waiting to be driven away. Mr Sullivan was still inside the house, gravely injured, holding the baseball bat and crawling about groaning and disoriented. A short while later, Ms Mackrell told Mr Gibson to leave, which he did, on foot.

3 Police and an ambulance arrived soon afterwards. A recording of the police search of the premises showed Mr Sullivan in a sickening state. He was airlifted to the Alfred Hospital where he underwent emergency surgery and was placed on life support. Sadly, he had suffered skull and facial fractures and a catastrophic brain injury. Worse still, the internal damage was irreparable and he died seven days later. He was 41.

4 Soon after the attack, Mr Gibson, who was only 18, was arrested on the side of a road not far from the house. When interviewed by police, he presented in a very strange fashion. He was ultimately charged with murder and has remained in custody ever since. While in the Acute Assessment Unit (“AAU”) at Melbourne Assessment Prison, he was assessed as psychotic and, after two months, was transferred to the Thomas Embling Hospital for nearly nine months, and then back to the AAU again, where he remains to this day.

5 Following a trial in this Court at Morwell in July, a jury of twelve found Mr Gibson guilty of murder.

6 While other points were also taken at trial, his main defence was the statutory defence of mental impairment – or what at common law is called insanity.[1] It is plain that Mr Gibson was in the grips of a psychotic episode at the time of the attack. Both psychiatric witnesses at trial – Dr Remy Glowinski and Dr Lester Walton – accepted that was so. Further, Mr Gibson’s behaviour before, during and after the attack is consistent with that view. His remark, “He killed my dad; I saw it in the smoke,” must have been a reference to the fact that his father had been killed in the Churchill bushfires on Black Saturday in 2009. Mr Sullivan, of course, had nothing to do with Mr Gibson’s father’s death. This utterance simply reflected Mr Gibson’s utterly deluded state at the time. Indeed, I am satisfied that he was so psychotic that one of the two limbs of the defence of mental impairment was established – namely, that he did not know that the conduct was wrong (that is, he could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong).[2]

7 The principal matter in issue at trial concerned the other limb of that defence – namely, whether a psychosis of that order was caused by schizophrenia or was drug-induced. On the state of the law in Victoria, the defence would succeed in the former case but fail in the latter.[3] This is where the psychiatrists differed most: Dr Walton considered that, while a drug-induced psychosis was possible, on balance, the psychosis was caused by schizophrenia, whereas Dr Glowinski thought that possible but considered it more likely to be drug-induced. The jury’s verdict implies, or is at least consistent with, a preference for Dr Glowinski’s view.

8 It is in those circumstances that I come to sentence Mr Gibson for the murder of Mr Sullivan. Objectively, this is a very serious crime. While the attack was spontaneous, it was a murder committed without provocation or warning and in brutal and disturbing circumstances. Understandably, the grief and dismay suffered by Mr Sullivan’s family is deep and palpable. Ordinarily, and without knowing more, a very heavy sentence would follow.

9 There are, however, features of this case that compel a lesser sentence. First, as I have said, Mr Gibson’s thoughts were so disturbed that he did not know what he was doing was wrong. Secondly, while he had a long history of drug-taking, and while there is a correlation between his earlier drug use and some (undefined) psychotic symptoms, I am satisfied that Mr Gibson had never experienced a psychosis of these proportions, let alone a violent psychotic episode, induced by drug-taking. Indeed, in light of the evidence that Mr Gibson is now regarded as suffering from schizophrenia, I think it is likely that his earlier psychotic symptoms were the product of schizophrenia. Thus, although, on my findings, his psychosis at the time of the offence must be taken to have been caused by voluntary drug-taking, he could not have been aware that taking drugs on this occasion would cause him to behave as he did. Accordingly, his psychosis reduces his moral culpability. It also lessens the weight to be given to some other sentencing considerations that usually would compel a substantially heavier sentence. Thirdly, that Mr Gibson is suffering from schizophrenia has made, and will continue to make, his time in prison more onerous. Finally, Mr Gibson was and remains very young and has reasonable prospects of rehabilitation.

10 Before addressing these and other matters in greater depth, I shall turn to a more detailed summary of the evidence at trial. In addition, I shall summarize some of the further information and evidence received on the plea.

11 The attack occurred on Good Friday 3 April 2015 at the home of Adam Charleston, at Lot 7, 18 Tyers-Walhalla Road in Tyers, which is near Morwell. Mr Charleston lived there with his sons Lucas (then aged 16) and Jack (then aged 14). The boys’ mother Helen Mackrell also stayed there, but only occasionally, as she and her husband were semi-estranged.

12 Mr Sullivan met the Charleston family earlier in the week leading up to Good Friday. He had no fixed address at that time. It seems that the family, and Ms Mackrell in particular, were given to offering a bed to those who were down on their luck. And so it was that Mr Sullivan, along with his young son Jye, took up an offer to stay with the Charleston family for a while.

13 Mr Gibson had no fixed address either – for the past two years or so in his case. He would stay with his mother occasionally for a night or two, but no more, as he did not regard himself as welcome by his mother’s partner. He had been friendly with the Charleston family for some years. He had stayed at their house on occasions previously, and for about a month at the end of 2014. On the Holy Thursday, he came across Ms Mackrell and her sons at a local shopping centre. He was invited to stay at their house, and accepted.

14 A good deal of illegal drug-taking often occurred at the Charleston household. Mr Charleston and his son Lucas admitted to consuming vast quantities of cannabis – anywhere from one to seven grams a day. Mr Charleston and Ms Mackrell would take “ice” occasionally. Mr Gibson had also consumed large amounts of cannabis when he had stayed there previously. On an earlier occasion, he had been introduced to intravenous “ice” use by Ms Mackrell.

15 Mr Charleston gave evidence that, on the Thursday afternoon, he, Ms Mackrell and Mr Gibson used “ice” and cannabis at the house. He believed that Mr Sullivan had cannabis too, but was unsure whether he used “ice” as well.

16 Jack Charleston gave evidence that, at some stage on the Good Friday morning, Mr Gibson told him that he did not like Mr Sullivan.

17 Detective Senior Constable Jaymie Carroll gave evidence that, at about 5:30 p.m. the same day, he was called to the Charleston house because of a dispute between Mr Charleston and Ms Mackrell. When he arrived, he spoke to Mr Charleston and Mr Sullivan, neither of whom he had met before. They appeared to be drug-affected – and Mr Charleston by “ice” in particular. He also spoke to Mr Gibson, to whom he had spoken previously. On this occasion, he was “very vague, confused and some of what he said just didn’t make sense”. When Detective Carroll went to look for Ms Mackrell at a nearby park, Mr Gibson went too. At that time, again, he was “erratic” and “making strange comments”. Detective Carroll associated this behaviour with the use of “ice”, but conceded there might be other explanations for it.

18 At the time of Mr Gibson’s attack on Mr Sullivan, also present at the house were Adam and Lucas Charleston. Ms Mackrell and Jack Charleston were at a neighbour’s house, and Mr Sullivan’s son Jye had left earlier.

19 Adam Charleston’s account of the attack was as follows: Between about 10:00 p.m. and 11:00 p.m., he and Mr Sullivan were on the front porch having a smoke. As they walked back inside the house to the kitchen/dining area, without warning or any discussion, Mr Gibson swung the baseball bat with both hands and struck Mr Sullivan on the right side of the head. (The bat was Mr Gibson’s. He had left it there on a previous stay.) Mr Sullivan fell face-first to the floor. Mr Charleston said, “What do you think you’re doing?” Mr Gibson’s response, which was accompanied by an “odd” facial expression, was, “He killed my dad; I’ve seen it in the smoke.” Then, with “a look of disbelief”, he stood over Mr Sullivan, who was still face-down, and struck him five or six times to the head area with the bat. Mr Charleston screamed at Mr Gibson, who then left the house. Lucas Charleston, who was in a bedroom, was also screaming.

20 Lucas Charleston’s account was similar but differed in some respects. He said he was in the main bedroom adjoining the dining area at the time. He saw Mr Gibson strike Mr Sullivan with the bat to the back of the head. He fell face-first to the floor in the doorway to the bedroom and then rolled over onto his back. Mr Gibson said, “You killed my father,” and then swung the bat at him multiple times, perhaps five, connecting with his nose and forehead each time. Then he lobbed the bat, underarm and end-over-end, so that the tip of it landed precisely on Mr Sullivan’s forehead. Lucas then hid under the bed for about two or three minutes before leaving to fetch his mother.

21 I am satisfied beyond reasonable doubt that, without warning or provocation, Mr Gibson struck Mr Sullivan hard to the head once with the baseball bat; that he fell hard face-first to the floor in consequence; that Mr Gibson then uttered the words “He killed my dad; I’ve seen it in the smoke”; and that he then struck him hard at least once more to the head when he was prostrate, defenceless and face-down on the floor.

22 While it is possible – perhaps even probable – that further blows were struck thereafter, for reasons that follow, I am not satisfied beyond reasonable doubt of more than two blows in total and the face-first fall in between.

23 First, the medical evidence (from Professor Andrew Udy, an intensive care specialist who treated Mr Sullivan at the Alfred Hospital, and Dr Malcom Dodd, the forensic pathologist who conducted the autopsy) concerning the nature of the facial, head and brain injuries was that, while there may have been as many as five or six blows, two blows with a bat and falling face-first onto the floor (i.e. three separate instances of blunt force trauma) would be sufficient to account for those injuries.

24 Secondly, I found Adam and Lucas Charleston to be unconvincing witnesses in some respects. Both struck me as uncertain on this issue and others. This, in turn, caused me to doubt them on matters that were not essential to the verdict. Apart from the differences between their final versions, both also previously gave inconsistent accounts of key aspects of the attack and its surrounding circumstances, for which no satisfactory explanation was given. Both had consumed large amounts of cannabis over a long period of time and on the day in question. Lucas Charleston’s account of Mr Gibson lobbing the bat end-over-end was just implausible.

25 Thirdly, and perhaps recognizing these limitations, counsel for the Director, Mr Thomson, went to the jury on the basis that two blows were sufficient to account for the injuries and to demonstrate at least an intention to cause really serious injury. The verdict is consistent with that submission, as is the medical evidence.

26 Fourthly, on the plea, Mr Thomson repeated the submission that there “must have been at least two blows with at least moderate force to account for the multiple skull fractures and brain injuries”, but did not argue that I should be satisfied beyond reasonable doubt that there were more than two blows.

27 While there were differences – some of them significant – between the accounts of Mr Charleston, Ms Mackrell and Lucas and Jack Charleston as to the next series of events, I am satisfied of the following.

28 After the attack, Adam and Lucas Charleston each ran to get help from Ms Mackrell, who was at a friend’s home two doors up with her younger son Jack.[4]

29 Lucas rang triple-zero while there. When asked, twice, by the triple-zero operator who struck Mr Sullivan, he said he did not know, on each occasion. He explained these responses as the product of shock.

30 When Ms Mackrell arrived back home, she saw Mr Gibson on the passenger side of Mr Charleston’s car, as if waiting to be driven away. She asked him where Mr Sullivan was, but he appeared to be in shock and unable to speak.

31 Ms Mackrell went inside and found Mr Sullivan. He appeared to be gravely injured and was crawling about with the baseball bat in hand, groaning and disoriented. Mr Charleston was looking for his car keys, but could not find them. The two of them tried to assist Mr Sullivan, but he was incoherent and resistant. At some point, Mr Charleston jumped out the back window in panic. Ms Mackrell went to get a neighbour to bring his car, but was told he had gone to bed.

32 At another point, Mr Gibson was looking for Mr Charleston’s car keys too. Ms Mackrell told Mr Gibson to leave, which he did, on foot.

33 Shortly afterwards, police and an ambulance arrived. Somehow, Mr Sullivan had managed to move himself to the second bedroom. As I indicated earlier, an audio-visual recording showed him in a sickening state. He was trying to stand but could not do so. He appeared to be very seriously injured and profoundly disoriented.

34 Mr Sullivan was airlifted to the Alfred Hospital, where he underwent emergency surgery and was placed on life support. He had suffered skull and facial fractures and a catastrophic brain injury. Professor Udy explained that the medical opinion was that his brain damage was not survivable and that the decision was taken to remove life support. He died at 4:02 p.m. on 10 April 2015.

35 Soon after Mr Gibson left, at around 11:30 p.m., he was arrested by police on the side of a road not far from the house.

36 He was interviewed by police from 2:50 a.m. the next morning, i.e. the Saturday. Amongst other things, he said that, after coming out of the toilet, he found Mr Sullivan “fucked up” and tried to help him but did not touch him. He said he tried to find Mr Charleston’s car keys so that he could be driven to hospital. He also said he went down the road to find a telephone box to ring for an ambulance, but ultimately did not do so, as he saw an ambulance coming. Then he kept walking. He admitted that the baseball bat was his and that he had handled it earlier in the night. He said he saw a shadow when he was on the toilet and heard the sound of the baseball bat hitting the floor. He also said that Mr Sullivan was “rude, abrupt and he laughed too much”. But he denied assaulting him. While the foregoing answers were delivered in a rather odd fashion, most were conventional enough in their content.

37 Other aspects of the interview, however, were very strange. At times, Mr Gibson rambled, said things that were inappropriate to the context, made odd gestures and movements, and his thoughts appeared to be disordered. Later in the interview, when it was alleged that he had hit Mr Sullivan about six times with a baseball bat, Mr Gibson paused and then responded, “Yeah, I hit him about four times – four to six times.” When asked why he did that, he answered, “I thought it was perfect and it wasn’t. It was just a fire.” After those answers, which were troubling enough, he paused slightly and then laughed maniacally. This sat me back in my chair. I expect the jury had a similar reaction. It was very disturbing. He then denied that he had hit Mr Sullivan. Mr Thomson did not rely on these utterances as admissions. Given Mr Gibson’s disturbed mental state at the time of the interview, I am not prepared to rely on them either.

38 Later on the Saturday, at about 4:00 p.m., at the instance of police, Mr Gibson was examined by forensic physician Dr Morris Odell. He told Dr Odell that he had had some methylamphetamine more than 24 hours previously and that he had used cannabis within the previous two weeks. Dr Odell observed a puncture mark inside Mr Gibson’s left elbow, which could have been caused by an injection, either to insert a substance or for a blood test. In his opinion, the puncture mark could be anything up to a week old. He took blood from Mr Gibson, which tested negative for drugs, poisons and alcohol. The half-life of methylamphetamine is variable, and can be anywhere between ten and 30 hours, depending upon the individual.

39 Dr Odell also gave evidence that toxicological analysis of serum taken from Mr Sullivan early on 4 April 2015 showed the presence of methylamphetamine (or “ice”) and amphetamine. Further, urinalysis taken post mortem on 13 April 2015 showed the presence of a metabolite of cannabis. Dr Odell was not able to say how much of these substances were in his body preceding death or when they were used.

40 While Dr Glowinski gave evidence in the prosecution case before Dr Walton followed in the defence case, it is convenient to summarize Dr Walton’s evidence at trial first, as he examined Mr Gibson earlier, on 9 May 2016.

41 Dr Walton said that the history taken from the Thomas Embling Hospital file was that Mr Gibson had suffered from psychotic symptoms for about a year prior to the incident. (The nature and extent of these symptoms was not elaborated.) He deteriorated further after his arrest on 3 April 2015. He was involved in altercations and self-harm in custody. He also voiced deluded ideas, including that he was a reincarnation of Adolf Hitler, that his thoughts were being broadcast to others and that his body and thoughts were being controlled by others. On 25 June 2015, he was transferred from the AAU at the prison to Thomas Embling Hospital, where he stayed until 17 March 2016 – a period of nearly nine months. In Dr Walton’s view, Mr Gibson had a severe treatment-resistant illness, as indicated by the long duration of the admission and the prescription of three separate antipsychotic medications to treat him.

42 Dr Walton then took a history from Mr Gibson directly. He said that, on the night in question, two people held him down while he was injected with methylamphetamine by Mr Sullivan. He said he blacked out but, later and with difficulty, made his way to the bathroom, where he had trouble breathing. He rested on the toilet. He had no feeling in his fingertips and legs and felt he had no control over his body. He had no recollection of any altercation with Mr Sullivan but accepted that he may have been involved because he was amnestic.

43 He told Dr Walton that, from the age of 12, he had fantasies that he may have been the reincarnation of Adolf Hitler. He said similar ideas had become more vivid in the months leading up to the incident. He became convinced that his body and mind were being controlled by a Nazi regime called Wolfenstein. He was assailed by auditory hallucinations, including being told that he was the Fuhrer and being asked “Why isn’t he dead yet?”, which he took to be a reference to his needing to die before he could be reincarnated. He reported that, with the treatment he received at Thomas Embling Hospital, his thinking had normalized, although the auditory hallucinations had not gone completely but had very much improved, and he still had some ongoing feelings of being controlled at times. He was still on three antipsychotic medications – Solian, Abilify and Seroquel.

44 Mr Gibson told Dr Walton that he experienced some hallucinations at the outset of their interview but that they subsided promptly. In Dr Walton’s view, these hallucinations must have been of mild intensity, because he observed no distraction or psychomotor agitation. He added that Mr Gibson’s medication may have alleviated those symptoms, which in turn is consistent with his report of improved mental health and his transfer back to the prison.

45 Mr Gibson said that he began using cannabis at 13. His usage rose to seven grams daily and then reduced to three grams. He began smoking methylamphetamine at 14, typically using about one gram a day. He tried LSD once when 15, and experienced extended hallucinations.

46 His father suffered from anxiety of panic proportions; his sister and an aunt have bipolar disorder; and his paternal uncle has schizophrenia. In Dr Walton’s view, the uncle’s illness places Mr Gibson in a higher risk category for schizophrenia.

47 Dr Walton favoured the view that, at the time of the attack, Mr Gibson was suffering from schizophrenia, perhaps aggravated by drug use, as opposed to drug-induced psychosis only. He gave two main reasons. First, drug-induced psychoses, regardless of any treatment, usually resolve pretty quickly when drug use is ceased – often in a matter of hours and commonly within days. But, to take weeks is unusual; and months, while possible, is very rare. Here, Mr Gibson was so unwell after his arrest that he was transferred to Thomas Embling Hospital, where he spent nearly nine months before the treatment was effective. Secondly, Mr Gibson’s mental health deteriorated in the first two months in prison, despite an absence of illicit drugs and despite treatment. Dr Walton accepted that the stress of imprisonment can cause a deterioration in mental health, but not usually in the way Mr Gibson’s health deteriorated.

48 He added that the diagnosis in this case was made more difficult because of a paucity of previous psychiatric history and Mr Gibson’s use of drugs. While there is collateral information from Mr Gibson’s mother that his mental state was deteriorating for over a year before this incident, and that he had seen a psychiatrist once, he was also using illicit drugs during that period.

49 Nevertheless, Dr Walton was also of the view that, at the relevant time, Mr Gibson was so afflicted by schizophrenia that he did not know that his conduct was wrong – that is, he could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong. At the time of his assessment in May 2016, Dr Walton had read the transcript of the police interview and noted some oddities in it, but had not seen the DVD and did not really register just how disturbed Mr Gibson was. On the material he had considered to that point, he was tentatively of the view that Mr Gibson did not know that his conduct was wrong at the relevant time and that it was likely he was distracted by ongoing hallucinations. However, having seen the DVD recently, Dr Walton was much more convinced about the disturbed behaviour and firmer in his view about mental impairment. He observed Mr Gibson engaging in inappropriate jocularity, incongruent expression of emotion (including what I have described as the maniacal laughter), emotional distortion and nonsense sentences. He considered this to be clear evidence of defective reasoning powers and disordered thoughts, which is a hallmark symptom of schizophrenia (albeit not exclusively so), and impacts on his ability to distinguish right from wrong. He agreed that the observations of Detective Carroll earlier on the Good Friday day added to the evidence that Mr Gibson was psychotic at the time.

50 In summary, Dr Walton’s view was that Mr Gibson’s psychosis at the time of the attack was such that he did not know that his conduct was wrong and that, while it is possible that that psychosis was drug-induced, on balance, it was the product of schizophrenia, perhaps aggravated by drug use.

52 In Dr Glowinski’s view, Mr Gibson appeared to be quite keen to present himself as unwell and as suffering from ongoing psychotic symptoms. (Dr Walton had a similar experience, and factored that into his opinion.) Mr Gibson said that he should be at Thomas Embling Hospital still. He showed Dr Glowinski evidence of self-mutilation, which, he said, had resulted from command auditory hallucinations. Dr Glowinski found Mr Gibson’s speech to be essentially normal, albeit his thoughts were tangential. His mood was restricted but congruent to the topics discussed.

53 Mr Gibson reported hallucinations similar to those disclosed to Dr Walton, including references to Adolf Hitler. These, he said, had occurred both in previous months and during the course of the examination. However, Dr Glowinski did not notice any distraction in Mr Gibson during his assessment. On the other hand, consistently with his account to Dr Walton, Mr Gibson said that the medications he had been taking had dulled the hallucinations, which Dr Glowinski considered possibly true. Further, Dr Glowinski accepted that it was possible that Mr Gibson might have adjusted to this phenomenon over time in order to cope with it.

54 As he had told Dr Walton, Mr Gibson told Dr Glowinski that he had used cannabis and methylamphetamine from an early age. However, one difference was that he said that he had stopped using cannabis a month before the incident and “ice” about three months earlier. He also said that he became more violent and volatile while using cannabis, but also that it kept him calm. Further, he said that he had come off “ice” because he had lost a lot of weight and found that he was mentally even more unstable while using that drug. (I shall return to this evidence later.)

55 He gave the same family history of mental health problems as he gave to Dr Walton.

56 He told Dr Glowinski that he had no formal history prior to the incident and had not been officially diagnosed by a psychiatrist with an illness. At another point, he said that a general practitioner had diagnosed him with schizophrenia, but then said he may have imagined that because everything at the time was “like a cartoon” to him. However, he said that his mental state had become destructive and erratic from about two years prior to the incident. He said he was walking around in a “zombie state”, not talking sensibly, and that the voices were constantly telling him to rip his nails out and to do harm to himself and others. The voices were those relating to Adolf Hitler, Wolfenstein and the Nazi recovery team. At times, he saw car registration plates and other things that he took as related to these thoughts.

57 He said that, prior to the incident, he was hearing messages from the television and radio telling him to kill and to make himself stand out so that he could be more easily rescued by the Nazi recovery team. (He said he had kept that to himself because they were his secrets.) He said that the victim had offered him intravenous drugs. He said that he recalled looking him in the eye and not liking him as he reminded him of a Nazi. He believed that he could read the victim’s mind and came to the belief that the victim was planning to kill him. He recalled that he was in the back of a car, believing that he was Hitler and was to be driven away, but that he just walked away. When pressed further, he said he could not remember exactly what actually happened. Later, he said, “To be honest, I do not really remember much. I’ve had dreams that I have done it. I am too mentally unwell to talk now, I am sorry.”

58 When Dr Glowinski asked whether he recalled telling Dr Walton about being injected with methylamphetamine, Mr Gibson said that “they held me down and injected me with water, but they tricked me into thinking it was ‘meth’”. When the doctor asked who had done this, Mr Gibson said that it was “Adam and the rest of everyone, the Apache Indians, Turtle-neck and Panther Foot”. He said that Mr Sullivan also may have been involved. When asked whether he had told the police this, he said that he had forgotten to mention it because he did not feel it was relevant at the time, but that, now that he is better, he is able to remember it.

59 At this stage, I break from the summary to make these points. First, on the plea, Mr Kelly advised that his instructions are that Adam Charleston injected Mr Gibson with “ice”. It was more than he had ever had in a hit before. Ordinarily, he would use ice by smoking it in a pipe. Secondly, however, I do not accept that Mr Gibson was forcibly injected with “ice” or water on the day of the attack. There is the puncture mark on his arm observed by Dr Odell. There also is evidence that he had “ice” the previous day. And he may well have taken more on the Good Friday, although that is unclear, particularly given his blood screens tested negative for drugs. But there is no evidence from any other source that he was forcibly injected with that or any other substance on the day in question. On this issue, I am not prepared to act on Mr Gibson’s assertion or memory, particularly in light of the inconsistencies in some aspects of his accounts, as well as the evidence that he was very unwell on the Good Friday and in the months that followed and his assertion to Dr Glowinski that he does not really remember much anyway.

60 Returning to the summary of Dr Glowinski’s evidence, Mr Gibson recalled being taken into custody and then later being transferred to Thomas Embling Hospital. He recalled that a psychiatrist, Dr Bell, assessed him as requiring psychiatric admission, as he was hearing voices, ripping his nails, trying to electrocute himself and getting into fights. He recalls feeling paranoid about being tortured. He said that the voices had continued, and he continued to believe that he was Hitler.

61 Dr Glowinski accepted that, in his interview with police, Mr Gibson presented as odd and eccentric, as using unusual and idiosyncratic speech and as thought-disordered. He also considered that he behaved incongruently. Equally, though, Dr Glowinski considered it relevant that, in the police interview, he did not mention anything about hallucinations and that, outwardly, he did not appear to be having that experience.

62 Dr Glowinski accepted that Mr Gibson was psychotic at time of the incident. (It is obvious that he too was moved by Mr Gibson’s presentation in the police interview.) While he could not exclude the possibility that Mr Gibson did not know that his conduct was wrong, he felt unable to come to a firm conclusion about that, particularly in circumstances where he has not spoken of his remark, “He killed my dad; I’ve seen it in the smoke,” since it was made.

63 Dr Glowinski favoured the view that Mr Gibson was likely to have been suffering from a drug-induced psychosis at the time of the incident, rather than a psychosis caused by schizophrenia. By “drug-induced psychosis” he meant a psychosis that persists beyond the mere intoxication with the substance. While he accepted that Mr Gibson was regarded as psychotic for a long period after his incarceration, in his view, that fact did not preclude the conclusion that his psychosis on the night in question and thereafter was drug-induced. He said that there is now a recognition in psychiatry that prolonged periods of heavy use of “ice” can lead to prolonged psychotic states. Further, he is of the view that Mr Gibson’s continued or worsening psychosis when taken into custody is consistent with his withdrawal from drug use, the trauma of being involved in the incident and the fact of his being charged with murder. In addition, he considered that inconsistencies in Mr Gibson’s reporting of symptoms made it difficult to make a diagnosis of schizophrenia, albeit it was a possible cause of his psychosis.

64 In Dr Glowinski’s view, the correlation between Mr Gibson’s heavy use of drugs in the year or two leading up to this incident and the collateral information about his symptoms and behaviours during the same period suggests he had a series of drug-induced psychoses related to fairly constant substance use over that period.

65 In summary, Dr Glowinski’s opinion was that Mr Gibson’s psychosis possibly (but not probably) was such that he did not know that his conduct was wrong and that, while it is possible that that psychosis was caused by schizophrenia, on balance, it was drug-induced.

66 Dr Douglas Bell provided a report to the Court for the plea in mitigation. Dr Bell is Mr Gibson’s treating psychiatrist within the prison system. He is also the Assistant Clinical Director (Prison Operations) at Forensicare.

67 Dr Bell has known Mr Gibson since early in his incarceration and was responsible for his transfer to Thomas Embling Hospital on 25 June 2015 for further assessment and treatment. Since leaving the hospital on 17 March 2016, Mr Gibson has remained under Dr Bell’s care in the AAU at the prison.

68 Dr Bell explains that, following his initial reception to prison, Mr Gibson was assessed as having symptoms of a first-episode psychosis requiring further treatment. Prior to his transfer to Thomas Embling Hospital, he was seized of a number of delusional beliefs, including that he was Adolf Hitler, that he could control the weather, and a number of other bizarre themes. His thinking was disorganized and he demonstrated marked loosening of association of thought. He was transferred because of Dr Bell’s concerns regarding the severity of his illness and his risk of suicide.

69 Over time, Dr Bell has formed the view that Mr Gibson has an established paranoid schizophrenia requiring ongoing psychiatric care and treatment for the foreseeable future. He continues to experience a range of distressing psychotic symptoms, including persecutory and derogatory auditory hallucinations. These are of greatly diminished intensity than earlier in his incarceration but are not fully resolved.

70 He also has some features of post-traumatic stress disorder – namely, vivid memories and nightmares in relation to his offence – for which he is receiving active treatment.

71 Mr Gibson has been fully co-operative with his treatment, which has included engagement with a clinical psychologist, nursing support, occupational therapy and adherence to his regime of antipsychotic and antidepressant medications.

72 Dr Bell also advised that Mr Gibson has developed physical health problems – including hypertension, hyperlipidaemia and excessive weight gain – which are probably related to his psychiatric treatment and for which he is being treated.

73 Dr Bell explained that, such was Mr Gibson’s risk of suicide during the trial, the authorities took the unusual step of insisting that he return from the Court at Morwell to the prison in Melbourne each evening, despite the distances involved, so that a close level of observation could be maintained.

74 Dr Bell envisages that, following sentencing, Mr Gibson will be referred to St Paul’s Psychosocial Unit at Port Phillip Prison for further psychiatric residential care, with a focus on longer term rehabilitation and support before he moves eventually to the broader prison population.

75 Dr Walton provided an addendum report on the plea. He made at least three points relevant to sentence.

76 First, he opined that, when assessed in May, Mr Gibson expressed regret about his misconduct and he at least partly blamed himself, but his statement fell short of a full expression of remorse. On the other hand, he explained that mental illness is known to distort appropriate emotional expression.

77 Secondly, despite the jury’s verdict, Dr Walton remains of the view that Mr Gibson has now been through his first bout of schizophrenia.

78 Thirdly, Dr Walton opined that, if Mr Gibson is suffering from schizophrenia, “he will endure imprisonment as more onerous than others”. Further, in his view, “imprisonment hardly represents an ideal environment for the ongoing treatment and rehabilitation of a newly diagnosed schizophrenic”.

79 In the course of the foregoing summary, I have indicated my findings of fact on some matters, including that I am not satisfied, on the criminal standard of proof, that Mr Gibson struck more than two blows to Mr Sullivan’s head and that I am not satisfied, on the civil standard, nor do I consider reasonably possible, that he was forcibly injected with “ice” or water. Before turning to my assessment of the nature and gravity of the offence, I shall set out my findings, and reasons therefor, on other matters of importance.

80 First, I am satisfied that, in striking him hard twice to the head, Mr Gibson intended to cause really serious injury to Mr Sullivan, but I am not satisfied that he intended to kill him.

81 While Mr Gibson’s deluded belief – that Mr Sullivan had killed his father – may have given him a (somewhat confused) motive to assault Mr Sullivan in a serious way, I am not satisfied that he was motivated to kill. I find it difficult to discern his motive when he was so mentally unwell in any event. Further, that Mr Gibson told Jack Charleston he did not like Mr Sullivan, and that, in his police interview, he said that Mr Sullivan was rude, abrupt and so on, do not suggest to me the sort of animus involved in a motive to kill.

82 If Mr Gibson’s deluded thinking included an intention to kill, I expect he would have kept striking Mr Sullivan until he did kill him, then and there. Finally, while the blows were forceful and delivered with a weapon, the absence of any evidence of threats or an expressed intention to kill and my lack of satisfaction that there were more than two blows add to my doubt that he intended to kill.

83 Secondly, in light of unchallenged report of Dr Bell, as well as Dr Walton’s evidence at trial and his addendum report, I am satisfied that Mr Gibson now suffers from paranoid schizophrenia and has done so during his period of incarceration. I also accept that, because of that affliction, Mr Gibson has found, and will continue to find, prison more burdensome and that it will be difficult to treat his illness in prison. Mr Thomson conceded these matters on the plea.

84 Thirdly, while I cannot say that I am as confident of this as I am on some other matters, I do think it is likely that Mr Gibson was suffering from schizophrenia for a considerable time before and at the time of the murder.

85 Dr Walton made the point at trial that, because the earlier behaviour coincided with drug use, it was difficult to differentiate between drug-taking and schizophrenia as the explanation for whatever psychoses he might have suffered in past years and at the time of the attack. Equally, part of the reason he plumped for a diagnosis of schizophrenia was because, in the absence of illicit drug use after his incarceration, Mr Gibson’s psychotic symptoms first worsened and then persisted unabated for several months until controlled by three antipsychotic medications (although those symptoms have not receded completely).

86 When Dr Bell’s unchallenged opinion – that he is suffering from paranoid schizophrenia – is added to the mix, as I say, it causes me to think it likely that Mr Gibson has been suffering from schizophrenia for a good while prior to the murder.

87 Fourthly, as I have already indicated, I am satisfied that Mr Gibson was so psychotic at the time of the attack that he did not know what he was doing was wrong.

88 In my view, that conclusion is inevitable in light of the following: Mr Gibson’s presentation to Detective Carroll; his bizarre remark about his father and the smoke; his presentation to Mr Charleston when he made that remark; the unprovoked nature of the attack; his behaviour in waiting to be driven away afterwards; his strange presentation in the police interview; his answer, “I thought it was perfect and it wasn’t. It was just a fire”; his description of some of his delusions and hallucinations to Dr Walton and Dr Glowinski; the opinions of Dr Walton and Dr Glowinski; and his psychotic state for several months after his arrest.

89 The fifth matter arises in these circumstances. As I have just indicated a moment ago, I also think it likely that Mr Gibson was suffering from schizophrenia for a considerable period before and at the time of the attack. However, to sentence as if satisfied that he was schizophrenic during the attack, and as if that illness had the effect that he did not know that his conduct was wrong, would be to do so inconsistently with the jury’s verdict, because it would be to sentence as if both limbs of the defence of mental impairment had been established. Instead, given my finding about the level of his psychosis, in order to sentence consistently with the jury’s verdict, I must act on the basis that the jury were not satisfied that his profound psychosis was the product of schizophrenia but rather was drug-induced.

90 But that constraint does not preclude the view that he was also likely to be suffering from schizophrenia at the time of the attack and earlier, so long as it does not include a finding that schizophrenia caused the psychosis on this occasion.

91 Of course, another approach consistent with the jury’s verdict would be to find that Mr Gibson was suffering from schizophrenia which had the effect of rendering him psychotic but just short of the level that he did not know that his conduct was wrong. Such a view would be open but only if I were not so adamant about his profound level of psychosis. It may be that, in this particular case, for reasons I shall give shortly, such a finding would involve the same or a similar view as to his moral culpability as a finding that his psychosis was at the more disturbed level but was drug-induced.

92 For the Director’s part, Mr Thomson’s submission was that I should sentence on the basis that the psychosis was drug-induced. Mr Kelly did not suggest otherwise. I think that I am both compelled and constrained to that conclusion – compelled because I am satisfied that he was so psychotic that he did not know his conduct was wrong, constrained because to find that schizophrenia was the cause of that psychosis, instead of being drug-induced, would be inconsistent with the jury’s verdict.

93 Accordingly, I shall sentence on that basis, while at the same recognizing that it is likely he was also suffering from schizophrenia at the time of the attack and earlier but not that that illness was causative of his extreme psychosis at the time of the attack.

94 The sixth matter concerns my finding, expressed earlier in these reasons, that, although Mr Gibson’s psychosis was caused by voluntary drug-taking, he could not have been aware that taking drugs would cause him to behave as he did, such that his moral culpability is reduced by his psychosis.

95 Depending upon the particular circumstances, an offender’s moral culpability may be increased, reduced or left unaffected by the fact that, at the time of the offending, he or she was psychotic as a result of voluntary use of illegal drugs. As Maxwell P, Nettle and Redlich JJA said in their joint judgment in R v Martin:[5]

[19] We respectfully agree with his Honour’s conclusion that, in the circumstances of this case, the applicant’s moral culpability is not reduced by reason of his psychotic state. We would not, however, endorse the general proposition which underpins this conclusion – that psychosis (or other mental illness) which is drug-induced can never be a mitigating factor because it is the result of the offender’s own (illegal) act.

[20] Cases can be imagined where the offender’s psychotic state is drug-induced but is nevertheless treated as lessening the offender’s culpability. For example, the offender might have had no awareness – because of a lack of prior knowledge or experience – that the ingestion of a particular drug might trigger a psychotic reaction. In such a case, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act. Again – as in the case of Sebalj^[6] – the psychosis might occur in the course of the offender’s attempts to withdraw from the use of the drug which was, nevertheless, the cause of the psychosis. In Sebalj, the drug-induced psychosis was seen as substantially reducing the offender’s level of culpability for what he did while under the influence of paranoid delusions.

[21] As these examples illustrate, the critical factor in determining the significance of drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender. ...

96 In R v Martin itself, the applicant’s offences of manslaughter and reckless conduct by extremely dangerous driving were aggravated by the fact that he voluntarily took illegal drugs which caused him to become dangerously psychotic in circumstances where he knew or ought to have known that that was a likely result.[7] By contrast, in R v Sebalj, as their Honours observed in R v Martin, the applicant’s offence of murder of his partner was substantially mitigated by his psychosis, albeit that it was drug-induced, in circumstances where he had been attempting to withdraw from use of the drug which caused his psychosis.[8]

97 Mr Thomson made it clear that the Director did not submit that Mr Gibson’s prior drug use was an aggravating factor. He accepted that Mr Gibson was not on notice that he would become violently psychotic from taking drugs.

98 However, he resisted Mr Kelly’s submission that Mr Gibson’s moral culpability should be regarded as reduced by reason of his psychosis. Mr Thomson’s submission was that Mr Gibson’s psychotic state could not be mitigating when he had voluntarily taken the drugs which precipitated his psychosis and without evidence from him that he did not know of any connection between “ice” use and his violent behaviour.

99 There is in fact evidence which potentially bears on these issues. First, it will be remembered that Mr Gibson told Dr Glowinski that he became more violent and volatile while using cannabis, but also that it kept him calm; and that he had come off “ice” because, inter alia, he found that he was mentally even more unstable while using that drug.

100 Secondly, there is evidence that Mr Gibson did suffer some psychotic symptoms in the year or two preceding the killing and that he was also taking drugs heavily throughout that period.

101 Thirdly, Mr Gibson does have two prior Children’s Court appearances for offences involving violence which were committed during this same period. On 11 April 2013, when Mr Gibson was 16, he was placed on probation on a charge of armed robbery. On 10 April 2014, when he was 17, he was placed on a youth supervision order on charges of affray, recklessly causing serious injury and failing to answer bail.

102 I shall address each of those matters in turn. First, Mr Gibson’s reference to cannabis making him violent seems to me to be inconsistent with or cancelled out by his reference in the next breath to its making him calm. As to the “ice” making him more unstable, that is a far cry from suggesting psychosis, let alone violent psychosis. Further, for reasons I gave earlier, there are aspects of Mr Gibson’s accounts to the psychiatrists that are unreliable. I think these assertions fall into that category.

103 Secondly, as to the coincidence of psychotic symptoms and drug use in preceding years, as I mentioned earlier, the nature and extent of those psychotic symptoms was not elaborated in evidence. Further and in any event, correlation does not necessarily amount to causation. I am not satisfied that such earlier psychotic symptoms as there were, whatever their extent and nature may have been, are the result of drug-taking. Rather, in light of my finding about the likelihood of Mr Gibson’s schizophrenia pre-dating the attack, I cannot rule out that any such psychoses were the product of the early stages of schizophrenia.

104 Thirdly, there is no evidence that Mr Gibson’s prior offences – which I shall address in more detail later – were precipitated by drug-induced psychoses. For the moment, it is sufficient to say that I accept Mr Kelly’s submission that there is no connection between drug use and those offences.

105 In those circumstances, I accept Mr Thomson’s concession that Mr Gibson’s prior drug use cannot be treated as an aggravating factor. This is unlike the case of R v Martin, where the applicant had a demonstrated history of becoming violently psychotic and dangerous when taking drugs and was repeatedly warned by medical professionals that continued use of drugs would cause him to behave in such a way. It is also unlike R v Sebalj, where it seems that the applicant was aware of his psychosis but was in the process of seeking to address that affliction when the offence occurred.

106 I also accept Mr Kelly’s submission that, instead, Mr Gibson’s psychotic state should be treated as reducing his moral culpability, despite the fact that it was precipitated by his voluntary drug-taking. I do not accept Mr Thompson’s submission that the mere fact that the psychosis was drug-induced precludes a finding as to reduced moral culpability. That submission is inconsistent with the passage from the judgment in R v Martin which I read earlier. Nor do I accept that, before such a finding could be made, Mr Gibson needed to give evidence that he had never had any such experience previously and had no reason to believe he would behave violently if he took drugs. Instead, it is open to the Court, based on all of the evidence, to conclude, on the balance of probabilities, that he had no such experience or expectation. And I do make that finding.

107 In particular, while he had a long history of drug-taking, and while there is a correlation between his earlier drug use and some (undefined) psychotic symptoms, I am satisfied that Mr Gibson had never experienced a psychosis of these proportions, let alone a violent psychotic episode, induced by drug-taking. As I said earlier, I am satisfied that any psychotic symptoms he experienced previously are likely to be the product of what was then an undiagnosed schizophrenia. Even if I am wrong in that particular conclusion, I am satisfied that he had no reason to think that drug-taking would induce a psychosis of the nature and severity he experienced at the time of his attack on Mr Sullivan. Thus, although his psychosis was caused by voluntary drug-taking, he could not have been aware that taking drugs on this occasion would cause him to behave as he did. Accordingly, his psychosis reduces his moral culpability and degree of responsibility for the offence.

109 Murder is the most serious offence in the criminal calendar. In this State, it is (mostly) a common law offence [9] the maximum penalty for which is set by statute at imprisonment for life.[10]

110 The offence can be committed with or without motive and with an intention to kill, an intention to cause really serious injury, recklessness as to causing death or recklessness as to causing really serious injury. As I indicated earlier, I am satisfied that Mr Gibson intended to cause really serious injury to Mr Sullivan, but not to kill him.

111 Objectively, however, the offence is still very serious. While I accept that the attack was spontaneous, it was a murder committed without provocation or warning and in brutal and disturbing circumstances. Mr Sullivan must have been bemused as to why he was struck, if he had any awareness of what had happened to him at all. He certainly had no opportunity to defend himself. As I shall explain shortly, the impact of the offence on others has been grave.

112 On the other hand, for reasons I have given earlier, I am satisfied that Mr Gibson’s moral culpability and degree of responsibility for the offence are reduced substantially by the fact that he was so psychotic that he did not know that his conduct was wrong and because he did not know that taking drugs on this occasion would cause him to become violently psychotic. In considering the seriousness of the offence, it must be understood that, on my findings, Mr Gibson’s psychosis was at a level that, but for the fact that it was drug-induced rather than the product of schizophrenia, would have compelled a verdict of not guilty by reason of mental impairment.

113 Overall, while it is still a very serious offence, the reduction in moral culpability and degree of responsibility on account of Mr Gibson’s psychosis make this a considerably less serious example of murder than its objective features alone would suggest.

114 I turn now to the impact of Mr Sullivan’s death on his family and others. Mr Sullivan’s father Terry Sullivan, his brother Brett Joseph Sullivan and the witness Adam Charleston declared victim impact statements that were read to the Court.

115 Terry Sullivan explained that his son had seven children, one of whom pre-deceased him. He was hoping that a guilty verdict would bring closure, but he has been left feeling numb, empty and betrayed by the trial process. He said it is a parent’s greatest fear to lose a child. He misses his son terribly and there is a large hole in the world without him.

116 Brett Sullivan felt awful seeing his brother in hospital so battered and bruised. Telling his nephew that his father would not recover was the most difficult thing he has had to do. He still finds it hard to think that his brother is gone and often cries when alone with his thoughts. He hopes that Mr Gibson can truly understand the effect on his brother’s family and friends, but does not think this will occur. He annexed to his statement a touching photograph of one of Mr Sullivan’s younger children touching the hand of his father in hospital on the day he died.

117 Adam Charleston also declared a victim impact statement which was read to the Court. He still has nightmares about the attack. He believes he will never forget the fear he saw on his son Lucas’s face when it was occurring. He was unable to return to his home because of the horrible memories it held and has been unable to work since. He feels guilt towards his family that he had trusted Mr Gibson to be in his home and that he was unable to protect them.

118 These victim impact statements are eloquent testament to the grave impact Mr Gibson’s crime has had on Mr Sullivan’s family and others. I take into account the contents of these statements in sentencing Mr Gibson.

119 I turn now to the factors in mitigation on which Mr Gibson is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Kelly on the plea.

120 Mr Gibson was born in South Australia in the back of an ambulance travelling to hospital. He is the youngest of three. His older sister Jackie is seven years older than him. She attended court and is a resident of Traralgon. Her partner, Matthew, has terminal cancer, so she cares for him. He has a brother six years older than him, but they are estranged.

121 The family left South Australia when Mr Gibson was nearly two years of age. They had set out from Victoria in a bus. At that stage, both his mother and his father drank alcohol to intoxication and beyond. Their relationship was highly dysfunctional from the outset.

122 After they left South Australia, the Gibson family moved to Queensland and bought some land there. It was a 30-acre plot on which they had cattle on agistment. Their neighbours were drug traffickers. Tensions developed between them when the Gibsons refused to do favours for them that they had previously done, like running them into town. At one stage, a shotgun was produced and discharged in their yard and Mr Gibson was present when that happened.

123 After some four years of living on that block, which had very little by way of amenities (there was no electricity, for instance, and no running water), the house was burnt to the ground. Mr Gibson’s mother went in and saved the children. But that was the last straw as far as she was concerned. So the family determined then to move to Traralgon.

124 After that episode, Mr Gibson became very anxious and clingy to his mother and had trouble sleeping.

125 After the move to Traralgon, both his parents’ drinking grew worse. At that stage neither of them was working.

126 Mr Gibson was enrolled at a local primary school. He struggled to assimilate there because they had spent four years previously out bush with very little supervision and only limited social contact with other people, save for what he received thanks to his intermittent education. So it took a long time for him to find friends, socialise and feel comfortable at school.

127 His mother says he was never gifted academically. Mr Gibson, however, regarded himself as a reasonable student until his father’s death.

128 Things improved for him once he got to secondary school. He had more friends there than he had had at primary school and at this time he had no substance abuse issues whatsoever – at least not until his father’s death.

129 He was 12 when that tragedy occurred. Mr Kelly submitted that the circumstances surrounding that event are highly significant. They are as follows.

130 His parents bought a house in Traralgon. His father had his own business installing doors in industrial properties. The business was not going very well and the mortgage payments were not being kept uptodate. About four to six months prior to the Traralgon South bushfires in February 2009, Mr Gibson’s parents became estranged. His father left the matrimonial home, and it was sold from under them. Jackie, his sister, moved to Shepparton with her then boyfriend. Mr Gibson’s brother moved in with his biological father. That left a core of Mr Gibson and his mother with the house having been sold from under them. They were moved to emergency accommodation and she was drawing Centrelink payments.

131 His parents’ relationship had begun to unravel for some months before that happened. Mr Gibson’s mother had stopped drinking but his father was continuing apace. He would go out to pubs and drink and stay out. In that setting, he had a series of extramarital affairs, which also precipitated the breach with his wife.

132 Mr Gibson’s father had taken up with a woman who lived in Shepparton. Just before the fires, he had asked his son to accompany him to Shepparton so that he could meet the new woman in his life. Mr Gibson contrived an excuse, told his dad a lie, and refused to go. Very soon afterwards, he was with his mother at the time of the fires. They could see the fires from where they were. They did not drive out to them, but he expressed concern for his paternal grandparents, who lived in Traralgon South. His mother assured him that there would not be any problems, that they would be evacuated. What neither of them knew was that his father had driven down from Shepparton with his partner and had gone out to his parents’ house in order to assist them with the evacuation. He was aided by his brother. When out at his parents’ place, Mr Gibson’s father had a falling out with his partner, who took his car and drove off in it, leaving him stranded. That was the setting in which he died.

133 After his father died, Mr Gibson awoke to hear his mother saying to somebody on the phone, “How am I going to tell James?” He then walked into her bedroom and said, “Tell me what?” She then told him that his father had died in the fires.

134 Mr Gibson describes his mother as not coping particularly well before then. Money was extremely tight. All of her savings had gone into the house that they had bought, so she was left with virtually nothing, and a failed marriage.

135 Mr Gibson believes his father’s death has had a major effect on him, unsurprisingly. He was unable to eat for a while and he stopped seeing his friends. His mother became very depressed. She was neglecting the house work, so he started doing some of the cooking and cleaning. He lost a lot of weight.

136 Neither of them received any grief counselling. His mother explains that, because she was on Centrelink benefits and did not have the use of a car, it was not possible for her to take him to appointments. It was her expectation that he would receive counselling at school.

137 As it happens, he did in fact have two sessions with a counsellor at school. He disclosed to her that he was selfmedicating by using cannabis. Thus, he had graduated from cigarettes, after his father’s passing, to smoking marijuana. He made this disclosure to his counsellor on the understanding that what he told her was confidential. Yet she reported it to the principal, which created a problem at school. Also, as a consequence of the disclosure, the trust and rapport that one might expect in that kind of relationship was destroyed.

138 As to his marijuana use, he started with about two grams every two days. He smoked it in a bong. At least initially, that calmed him down and made him feel happier. He did notice that over time he felt more anxious, but he did not make the connection that it was the cannabis that was exacerbating or generating his anxiety. Accordingly, his way of dealing with anxiety was to smoke more cannabis. At its peak, his usage involved smoking in the order of 14 bongs a day. He was “stoned” on a daily basis.

139 At the time he first came to the notice of police, Mr Gibson had moved out of his home. He was living with his sister for a while. Then he prevailed upon friends. He lived with a particular friend for a number of months. His mother had repartnered. Mr Gibson’s relationship with his mother’s partner was difficult and complicated. As a consequence, Mr Gibson did not feel as though he could return home. He felt unwelcome. And so for approximately two years before April of last year, Mr Gibson had no fixed accommodation. He might return to his mother’s place, but only for a night or so, if her partner tolerated his presence. But it was always on the understanding that he would find somewhere else to live the following day. The longest placement of secure accommodation he had in his period was with his sister and that went for a couple of months.

140 So, by the age of 16 and 17, Mr Gibson had only limited exposure to the criminal justice system through the matters I mentioned earlier and on which I shall elaborate shortly. He had nothing like a demonstrated propensity for violence and nothing to indicate that he had, or ought to have had, an insight that using ice in the way he did, recreationally to begin with, was going to render him vulnerable to psychosis and in turn to serious violence whilst enthralled in that psychosis.

141 When he consumed ice, it made him feel, at least initially, stronger, smarter, faster. It made him think about his dad more when he was not sleeping at night. He used to think how painful his father’s death must have been, how he was on fire, his flesh charred and in agony. He was unable to get rid of those thoughts. That was at a time when he still had not received any counselling for what he had experienced at the age of 12.

142 As to school, he dropped out at Year 11. There was a desultory attempt to have him re-enrol in 2014, but the school was reluctant to have him back because at that stage he had racked up a couple of court appearances.

143 When he turned 18 in July 2014, Mr Gibson was eligible for a payout of $233,000 from the State Government as compensation for his father’s death. The payout took some months to be finalised because he needed a birth certificate, which had to be validated. There were documents which had to be witnessed by a police officer. The police officer used a pen that was a different colour from the one he had used to sign his name, and the forms were ultimately rejected in consequence. This meant that it was not until later in that year that Mr Gibson, as an 18-year-old, came into this substantial amount of money. With that money came the capacity to buy a lot of cannabis and ice, as well as various other trinkets like motor cars, a motorbike and the like.

144 As I indicated earlier, for about a month at the end of 2014, he lived with the Charlestons. That came to an end when there was a requirement that he be bailed with an uncle. In that month, he was not using ice but he was smoking cannabis heavily, as was Lucas Charleston. They would smoke it together. But he was aware during that time of Adam Charleston and Helen Mackrell using ice.

145 By April 2015, and in the intervening period, Mr Gibson was unrestrained in terms of having the wherewithal to buy recreational drugs. His use of both cannabis and methylamphetamine escalated in that period. When he met up with the Charlestons at the shopping centre on the Holy Thursday, he had something like $1,000 in cash on him. He was invited back to their house, he understood, to consume drugs, and he was happy to go along.

147 First, despite his plea of not guilty, given his conduct during the trial and the evidence of Dr Walton in his addendum report, I am satisfied that Mr Gibson regrets his behaviour, but that that regret falls short of a full expression of remorse. I also accept Dr Walton’s opinion that the notion of remorse may be complicated in a person suffering schizophrenia.

148 Secondly, I accept that Mr Gibson’s youth is an important mitigating factor. He was only 18 at the time of the offence and is now still only 20. All else being equal, a younger person is less likely to appreciate risk or consider consequences. In my view, Mr Gibson, at only 20, is at an age where his values and attitudes are still being formed. It is of course a pity that he will be developing those values and attitudes for a substantial part of his life while in gaol, but that, of course, is an unavoidable consequence of the nature and gravity of his crime. He must go to gaol, and for a very substantial period. But one of the great aims of the criminal law is to rehabilitate younger offenders. And Mr Gibson is still so young that rehabilitation is an important consideration in his case.

149 Thirdly, while Mr Gibson has two prior appearances in the Children’s Court for offences involving violence, I accept Mr Kelly’s submission that, in context, these are matters properly characterized as comparatively minor street offending.

150 As I indicated earlier, on 11 April 2013, when Mr Gibson was 16, he was placed on probation on a charge of armed robbery. Mr Kelly explained that, around that time, Mr Gibson had a number of friends who, like him, were “couch surfing” and “living rough”. Two of those friends were about to be sentenced to “juvie”, i.e. detention in a youth justice centre. On the morning of the offence, Mr Gibson had asked his mother for money, but she refused. He then hit upon the idea that, in order that he might go to “juvie” with his friends, he would commit a crime. So he armed himself with a hammer and a bag, went to a service station, smashed the counter with the hammer and demanded money be put in the bag. He achieved his aim in part, as he was detained at the Morwell lockup and then at the youth justice centre in Parkville for a week or so, despite the fact that he could have been bailed earlier. He failed in part because his friends were not sent to “juvie” after all.

151 On 10 April 2014, Mr Gibson was placed on a youth supervision order on charges of affray, recklessly causing serious injury and failing to answer bail. An older boy (of 18 or 19) brought his dog to school with his girlfriend, who insisted that he fight a younger student (of 16 or so). When the younger student was getting the worst of the fight, Mr Gibson stepped in and tackled the older boy to the ground. Others became involved. It was also alleged, albeit denied by Mr Gibson, that he stomped on the older boy’s ribs.

152 Overall, I accept that these are comparatively minor situational offences. Drug use was not a factor in either case. And the offending does not indicate any propensity for violence of the type or order that was involved in the murder of Mr Sullivan.

153 Fourthly, as indicated earlier, I accept Dr Walton’s evidence that, because of his schizophrenia and its symptoms, Mr Gibson has found and will continue to find his time in custody more onerous than other prisoners. Further, I accept Dr Walton’s view that prison is hardly the ideal place to be treating such an illness.

154 Fifthly, I accept that Mr Gibson has reasonable prospects of rehabilitation. I do not say that those prospects are good or very good or excellent, but they are at least reasonable.

155 Factors that drive me to that conclusion include Mr Gibson’s youth, his limited prior criminal history, his regret (albeit limited in the way described by Dr Walton), the fact that he was not in his right mind when he committed the offence, his apparent acceptance that he is mentally unwell and in need of treatment, his co-operation in that treatment and the improvement in his mental health.

156 It is likely that central to Mr Gibson’s rehabilitation in the longer term will be his continued compliance with his regime of antipsychotic medication and his continued abstinence from illicit drugs. Indications from Dr Bell are that he is compliant with the former thus far. As to the latter, the length of sentence that must be imposed will mean that Mr Gibson will have ample time to do courses and develop strategies in an attempt to rid himself of the desire or need to use illicit drugs. It is positive in this regard that he is engaging in and accepting of psychological treatment.

158 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

159 While general deterrence, just punishment and denunciation are usually very important considerations in sentencing for murder, the weight to be accorded to those purposes must be reduced in this case because of Mr Gibson’s psychosis at the time of the offending. The community must still understand that behaviour of the type engaged in by Mr Gibson is denounced by the courts and will result in a substantial term of imprisonment that reflects that Mr Sullivan’s life has been taken in brutal and disturbing circumstances, and that the lives of his loved ones have been marred forever. But, as I say, the weight to be accorded to those purposes in sentencing must be moderated. A person who was so mentally unwell at the time of the offence is not as appropriate a vehicle for the expression of general deterrence as one who was in his right mind. Nor does maximum weight to denunciation or punishment fit well in the case of one whose moral culpability was so much lower and whose time in custody will be all the more onerous because of his schizophrenia.

160 I think the need for specific deterrence is moderated by the same consideration, as well as the fact that Mr Gibson has a limited prior criminal history, some regret and reasonable prospects of rehabilitation. At the same time, while I have accepted that Mr Gibson was not on notice that drug use would cause him to become violently psychotic, there must still be an element of specific deterrence factored in to the sentence on account of his voluntary ingestion of illicit drugs. The use of illicit drugs generally, and methylamphetamine or “ice” in particular, is a scourge on the community. Those who sit in the courts cannot help but notice its connection to many offences. It ruins lives.

161 Protection of the community is a complicated consideration in a case like this. While the moral culpability of a person who was psychotic at the time of an offence must be reduced, which in turn reduces the weight to be accorded to the other sentencing purposes I have mentioned thus far, such a person also presents a potential danger in the future precisely because of his affliction, such that protection of the community might loom larger than otherwise. In the present case, I think there is still a need for some weight to be given to protection of the community, as there will remain a risk that Mr Gibson will re-offend while there remains a risk of his using illicit drugs or a risk of his failing to take prescribed antipsychotic medication. I cannot rule out those risks. At the same time, such evidence as I have at present is that he is stable on and compliant with antipsychotic medication. Further, as I said earlier when speaking of his prospects of rehabilitation, the length of sentence that must be imposed in any event will mean that Mr Gibson will have ample time to rid himself of the desire or need to use illicit drugs. And it is promising that he is engaged in and accepting of psychological treatment.

162 In my view, rehabilitation remains an important consideration in the present case. This is particularly so because Mr Gibson is so young and his prospects of rehabilitation are reasonable.

163 It is important to recognize the interplay between rehabilitation and protection of the community. Mr Gibson will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as he has are be maximized, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into the community are good.

164 Sections 5(3) and (4) of the Sentencing Act reflect the common law principle of parsimony. I have applied these provisions and this principle when considering the appropriate sentence in this case.

165 Another matter to which a court must have regard in imposing sentence is current sentencing practices.

166 Sentencing statistics show that, for the period from 2009-10 to 2013-14, the average non-life sentence for murder ranged from about 18-and-a-half years’ imprisonment in 2009-10 to about 22 years’ imprisonment in 2013-14; the median sentence was 20 years’ imprisonment, as was the mode; and the median non-parole period was 16 years, as was the mode.[11]

167 Of course, those statistics are of limited utility, mostly because they do not distinguish cases according to their most important sentencing considerations – such as the seriousness of the offence, whether there was a plea of guilty or not guilty, whether there were significant prior convictions, the age of the accused, whether there were significant aggravating or mitigating factors, and so on. Nevertheless, they do give some guidance.

168 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. On the plea, counsel made submissions as to how the present case compared with R v Sebalj.[12] In light of counsel’s submissions, it is appropriate to refer to this case in some detail.

169 Following a trial, Mr Sebalj was convicted of the murder of his partner Clare McKenna. He was aged 29 and had no relevant prior convictions. He had worked hard most of his life as a butcher but had a long-standing addiction to illicit drugs. Some weeks prior to the killing, he stopped work to deprive himself of the income required to buy drugs. Thereafter, he began to experience symptoms of paranoid psychosis in the form of visual and aural hallucinations. He had intrusive thoughts that others were intending to kill him. He thought his food and drink were being tampered with. Five days before the killing, he requested drug tests to ascertain whether he was being so treated, but, unsurprisingly, the tests produced a negative result. He returned to his doctor twice over the next four days suffering from symptoms of anxiety. He sought help from a hospital the day before the killing, but it appeared, because of his paranoid fear that those he was consulting might want to do him harm, that he did not fully disclose his symptoms.

170 Early on the morning of the murder, after a sleepless night, Mr Sebalj went back to his doctor’s surgery for assistance. It was closed (because of the early hour), which caused him to wonder whether this was done to make it look as though there was no one around. He went to the police, to whom he complained of problems in his head. He was referred by police to a hospital, which he attended. He was treated with tranquillising and antipsychotic medication and released into the care of his partner.

171 Arrangements were made for a member of the crisis assessment team to attend Mr Sebalj’s home that evening. When the psychiatric nurse arrived and telephoned identifying himself, Mr Sebalj hung up without speaking. The nurse redialled and spoke to Ms McKenna, who assured Mr Sebalj that he had come to help. Ms McKenna invited the nurse into the bungalow. As he approached, he heard loud crashing and high-pitched yelling. He retreated to his car and rang again. Mr Sebalj answered, saying, “It’s too late.” He emerged from the bungalow covered in blood. He had slashed his wrists and his own chest. Ms McKenna’s body was in the bungalow. He had stabbed her in the belief that she was in the process of admitting a person who had come to kill him. In his psychotic state, he believed he was acting in self-defence.

172 At trial, the judge ruled that, because Mr Sebalj was suffering from a drug-induced psychosis, the defence of mental impairment was not open. On the plea, the psychiatric evidence suggested that, consequent upon a subsequent diagnosis of schizophrenia, Mr Sebalj may have been suffering from schizophrenia at the time of the offence.

173 Following his trial, Mr Sebalj was sentenced to 15 years’ imprisonment with a non-parole period of 12 years. On appeal, the Court of Appeal held that sentence to be manifestly excessive and substituted a sentence of 12 years’ imprisonment with a non-parole period of nine years. In his judgment, Vincent JA (with whom Maxwell P agreed) said this:[13]

[13] ... Whilst there was said to be no doubt whatever that the applicant was psychotic at the time of the commission of the offence, whether that state could be attributed simply to the effect of drugs upon a vulnerable individual or whether it was a manifestation of his subsequently diagnosed schizophrenia would seem likely to remain a matter of conjecture. Whatever be the situation in that respect, it is clear that the applicant was in an acute psychotic state at the time that he brought about the death of the deceased. Whether that acute psychotic state constituted a disease of the mind, as I have indicated, it is not necessary to determine, but it is clear that it must be regarded as constituting a serious psychiatric illness. The applicant had, in the period leading up to the stabbing of Ms McKenna, become particularly concerned about his situation, had obviously developed some insight and had made serious endeavours to seek assistance for his condition. Viewed against that background, his level of moral culpability for what he did must be regarded as substantially lower than that which would otherwise be attributed to a person who acted in the fashion that he did.

[14] As this Court has made clear, in Tsiaras [14] and in a number of other cases, concepts of denunciation and general and specific deterrence can only assume limited significance in the determination of an appropriate sentence in cases of this kind. Nevertheless, as [counsel for the Director] submitted, it is important to bear in mind that where the psychotic state of an applicant was the consequence of his ingestion of drugs or other conduct deliberately chosen by him, the extent to which it can be asserted that his level of moral culpability is reduced may become very much problematic. Whatever be the situation in other cases, what is clear is that the applicant did all that he could do to address the situation with which he was confronted, and over a number of days prior to the commission of the offence.

[15] ... I am of opinion that the sentence at which [the sentencing judge] ultimately arrived could be described as manifestly excessive in all of the circumstances. In so doing, I wish to emphasize that I regard the present case as being particularly unusual in a number of respects. It would be seldom that a self-induced psychosis would result in a significant lowering of the sentence to be imposed. In this case, whilst the applicant acted deliberately, it is clear that he did so under the influence of paranoid delusions. Whether they were the manifestations of a transient psychosis brought on by his endeavours to withdraw from the use of drugs or indicative of the onset of the subsequently diagnosed illness of paranoid schizophrenia, his level of culpability must be regarded as low. There was no rational motive for his conduct and his relationship with the deceased was one of affection. There was no issue with respect to the genuineness of his remorse, nor indeed is there any indication from his history, which involved only two earlier court appearances for what are in the circumstances insignificant matters, that he possessed or possesses any predisposition to violent behaviour. His prospects of rehabilitation were, in the assessment of the sentencing judge, quite good. Again, when one considers the totality of the circumstances, there is no reason to suggest why that would not be so.

174 Mr Thomson submitted that, while there were similarities between R v Sebalj and the present case, there were important differences that made Mr Gibson’s offence more serious and deserving of a heavier sentence. First, Mr Sebalj made attempts to rid himself of drugs and seek help from medical practitioners and others, whereas Mr Gibson did not take any equivalent action. Secondly, Mr Sebalj had no relevant criminal history, whereas Mr Gibson does. Thirdly, Mr Sebalj had a strong work history, whereas Mr Gibson has none. Fourthly, Mr Sebalj was remorseful and had good prospects of rehabilitation, whereas Mr Gibson is not remorseful (or at least has only limited remorse) and has weaker prospects of rehabilitation. Fifthly, in his psychotic state, Mr Sebalj believed he was acting in self-defence, whereas Mr Gibson believed he was acting out of revenge, the former motive being less morally blameworthy.

175 Mr Kelly submitted that the latter submission should be rejected. In his submission, when a person is in a psychotic state so florid that he does not know what he is doing is wrong, it makes no difference in moral culpability whether the person has a belief in the need for self-defence or is acting out of some confused motive of revenge. I accept that submission.

176 Further, Mr Kelly pointed out that Mr Gibson was unusually young compared with Mr Sebalj, which is a relevant consideration. Mr Thomson accepted this point. I do too.

177 Both accused also had the mitigatory benefit of a subsequent diagnosis of schizophrenia and all that comes with it.

178 Mr Kelly also submitted that, while Mr Gibson did not attempt to detoxify or seek assistance from others, he was only 18 and had not had any violently psychotic experience as a result of drug-taking, whereas Mr Sebalj was 29 and had more experience of the world and had been using illicit drugs for many years. I have some sympathy for that submission, particularly the notion that Mr Gibson was young and inexperienced. But I do think that Mr Sebalj’s circumstances were more exceptional and more deserving of mercy and compassion in light of his obvious attempts to seek help.

179 As to the other points made by Mr Thomson, I think they are sound distinctions – although, again, at 18, Mr Gibson had little time to develop any work history. That said, there is no indication that he would have done so.

180 Now, in making these comparisons, I am careful to recognize that, in sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied. Rather, it is the application of principles to findings of fact that is the major driver in sentencing.

181 However, the striking thing about the sentences imposed in R v Sebalj, both at first instance and on appeal, is that they were substantially lighter than is commonly seen for murder. Ordinarily, it would be reasonable to expect a sentence in the order of 20 years’ imprisonment for a crime with similar objective features. It is, however, plain that the principal factors animating each sentence were the substantially reduced moral culpability on account of Mr Sebalj’s psychotic state and the comparatively blameless circumstances in which he was struggling to deal with his disturbed state of mind that had been brought about by his drug use. Accordingly, I have found both the sentence imposed by the Court of Appeal and their Honours’ discussion of principle very helpful in assessing the appropriate sentence in the present case.

182 All of that said, and again recognizing that sentences in other cases are not precedents to be applied or distinguished, I accept the gist of Mr Thomson’s submission that Mr Gibson’s offence is the more serious of the two and that it warrants a longer sentence.

183 It is also my sense that, perhaps contrary to the belief of some, sentences for murder have increased since 2006, which is when Mr Sebalj’s ultimate sentence was imposed by the Court of Appeal. The statistics I referred to earlier might be taken as providing some support for that impression.

185 In this case, I have found it very difficult to arrive at what I regard as a just and appropriate sentence. On the one hand, Mr Gibson has a committed a very serious crime. A man’s life has been lost in frightening and brutal circumstances. The grief experienced by his loved ones is profound. On the other hand, Mr Gibson was not in his right mind at the time, was not aware that he would become so unwell and act in such a way as a result of using drugs, was and still is very young, has only a modest criminal history, suffers from schizophrenia, will do his time hard in consequence, and has some prospects of rehabilitation.

186 Balancing these and all other matters as best I can, for the murder of Glenn Sullivan, I have determined that Mr Gibson is to be convicted and sentenced to 15 years’ imprisonment. I fix a non-parole period of 11 years.

187 Pursuant to s 18 of the Sentencing Act, I declare that 570 days (including today) be reckoned as served under this sentence.

^[1] See s 20(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). By s 25(1) of the Act, the common law defence of insanity has been abrogated.

^[2] See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

^[4] Lucas Charleston claimed that only he went to fetch his mother and that his father stayed with Mr Sullivan. This was contradicted by his parents and his brother.

^[9] The exception is that what was once the felony-murder rule is now put on a statutory footing – see s 3A of the Crimes Act 1958 (Vic) – which was inapplicable in this case.

^[11] Sentencing Advisory Council, Sentencing Snapshot (No 171), May 2015, pp 2-4.

Supreme Court of Victoria

The Queen v Gibson [2016] VSC 634 (24 October 2016)