IN THE SUPREME COURT OF VICTORIA	Not restricted	
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0287

THE QUEEN		
		
v		
		
HENRY RICHARD HAMMOND		

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JUDGE:	PRIEST JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 August 2020	
DATE OF RULING:	17 August 2020	
CASE MAY BE CITED AS:	R v Hammond	
MEDIUM NEUTRAL CITATION:	[2020] VSC 515		

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CRIMINAL LAW – Murder – Plea of not guilty by reason of mental impairment – Trial by judge alone – Consent hearing – Diagnosis of schizophrenia – Verdict of not guilty by reason of mental impairment – Report furnished pursuant to s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 24.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Mr S Norton	Stary Norton Halphen	

HIS HONOUR:
Introduction
1	At about 4.30 am on Saturday, 25 May 2019, Henry Richard Hammond (for convenience, ‘HRH’) bludgeoned Courtney Amber Herron to death.  Ms Herron was aged 25 years when she died.  HRH was aged 27 years when he killed her.   
2	On 17 August 2020, HRH pleaded not guilty to Ms Herron’s murder by reason of mental impairment.
3	It was agreed by the prosecution and defence that the available evidence established the defence of mental impairment.  Further, the prosecution and defence agreed that I should hear the matter in accordance with s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘CMI Act’).  Section 21(4) empowers me to hear the evidence and, if satisfied that the evidence establishes the defence of mental impairment, direct that a verdict of not guilty because of mental impairment be recorded.  
4	In my view, at the time that he committed the acts that would otherwise have constituted murder, HRH was suffering from a mental impairment.  I therefore find HRH not guilty of murder because of mental impairment.  My reasons follow.
The defence of mental impairment
5	Section 20(1) of the CMI Act provides for the defence of mental impairment.  By reason of s 20(2), if the defence of mental impairment is established, I must find HRH not guilty of murder ‘because of mental impairment’.  Section 20 provides:
20 Defence of mental impairment
(1)	The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that — 
(a)	he or she did not know the nature and quality of the conduct;  or 
(b)	he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong). 
(2)	If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
6	In this case it is the agreed psychiatric opinion that at least the second limb of s 20(1) — that at the time of the conduct constituting the offence HRH did not know that it was wrong — was engaged.
7	As I have said, my capacity to determine the matter flows from s 21(4) of the Act, which is in the following terms:
(4)	If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and — 
(a)	if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded;  or 
(b)	if the trial judge is not so satisfied, must direct that the person be tried by a jury.
Background
8	It is necessary to outline the essential facts.
9	On Friday, 24 May 2019, at about midday, Ms Herron travelled to the Melbourne CBD with her boyfriend, Daniel Monson, and his cousin, Luke Jacobsen.  At about 1.56 pm, HRH approached them and asked for a cigarette.  Ms Herron gave him a cigarette and they chatted.
10	The group then travelled to Fitzroy to smoke ‘ice’ (methylamphetamine).  At some point after reaching Fitzroy, Mr Monson and Mr Jacobsen left to return home, whilst Ms Herron opted to remain in Fitzroy and wait for her friend, Bronte Farrell, to return to her apartment.  
11	At about 7.45 pm, Ms Herron and HRH went to Ms Farrell’s apartment.  Ms Farrell was with a friend, ‘Leo’.  The four smoked cannabis, and Ms Herron and HRH also used ice.
12	Between 8.30 pm and close to 10.00 pm, Ms Herron and HRH were away from Ms Farrell’s apartment to eat.  Upon returning, Ms Herron and HRH ingested more ice with Ms Farrell and another male, Julian Chiera.  Ms Farrell and Mr Chiera both noticed that Ms Herron and HRH were acting strangely and communicating with each other using hand signals.
13	Ms Farrell took a video recording of a conversation between Ms Herron and HRH sometime around 2.45 am.  Throughout the recording Ms Herron expressed irrational thoughts concerning dragons and magic.  Shortly afterward, at about 3.30 am, Ms Herron and HRH left the apartment.  They walked from Fitzroy and entered Royal Park, Parkville, at approximately 4.30 am.
14	As they walked through Royal Park, HRH picked up a branch from the ground.  Ms Herron was scared, and asked, ‘are you going to kill me?’.  HRH then struck her to the head with the branch.  Ms Herron started to scream.  HRH struck her repeatedly with the branch.  Indeed, it is estimated that he bludgeoned her body with the branch for some fifty minutes, causing significant injuries to her face, chest and abdomen.  HRH then tied Ms Herron’s legs together using a stick and a piece of black material and dragged her body across a path and into a clearing, where he covered her with leaves and a large tree branch, and placed a large piece of concrete on her face.
15	HRH took Ms Herron’s mobile telephone and a wallet containing various cards in her name and Mr Monson’s name.  He smoked a cigarette and remained in Royal Park until around 7.00 am. 
16	Dog walkers found Ms Herron’s body at about 9.10 am and called emergency services.
17	A post-mortem examination, carried out on 25 May 2019, found multiple injuries consistent with numerous applications of blunt force to Ms Herron’s face, chest and abdomen, associated with internal injuries causing death.  In summary, the pathologist, Dr Gregory Young said:
The injuries to the face were associated with facial fractures, and blood within the pharynx, trachea and lower airways.  The injuries to the chest were associated with multiple rib fractures and rupture of the heart.  The injuries to the abdomen were associated with rupture of the liver, and haemorrhage in the small bowel.
18	HRH was arrested on 26 May 2019.  When first interviewed, HRH denied knowing Ms Herron and made ‘no comment’.  In a later interview conducted by Detective Senior Constable David Meneilly, however, HRH told police that:
•	whilst he was walking through Royal Park he recognised Ms Herron’s treachery towards him and his family;
•	the trees had dropped sticks seemingly for a reason;
•	he picked up a tree branch from the ground and at this point in time Ms Herron was scared and asked him if he was going to kill her;
•	he recognised her from a past life when he was happily married and had everything;
•	he took the branch and whacked her in the head with it;
•	he got his revenge on her;
•	he repeatedly struck her face with the branch, punched her in the face and dragged her for a bit over a path;
•	he hit her mostly on the face and a little bit everywhere, repeatedly, for 10 to 15 minutes;
•	he covered her with branches and placed a rock over her face;
•	he placed the rock over her face because of the atrocity she committed to his wife way back then, she had buried her alive for absolutely no reason at all except her own jealousy, it essentially ended her path;
•	he put the branches and rock on her face as a symbolic burial and he considered burning the leaves and branches as a symbolic release, smoke signal;
•	when he was hitting her he was thinking, ‘This is for everything you’ve ever done to me, to my family, gotten people to do to me and my family’;
•	he wanted her spirit to be released from his life and did not want to ever see her again;
•	when he dragged her and put a rock on her face he went to a little hill, sat down, rolled a cigarette and thought, ‘It’s finally over’;
•	he knows that the justice system does not usually take into account spiritual activities but he was doing what no-one could do.
19	Police charged HRH with murder on 26 May 2019.
HRH’s recent psychiatric history
20	In a report dated 13 December 2019, Dr Prashant Pandurangi, forensic psychiatrist, set out details of HRH’s recent psychiatric history, drawn from the available records.
21	Medical records showed that HRH was first referred to the Crisis Team (CATT) on 3 April 2017, after his mother contacted them with ‘concerns for her son who she reports is using cannabis on a daily basis, has lost all grip on reality and is currently living in his van in a car park off High Street, Northcote.  His mother also reports that he is claiming he is Jesus, is intrusive, talking ++ and approaching strangers, preoccupied with mathematical equations, believes he will win The Lotto’.  HRH had recently broken up with his girlfriend and had a history of using illicit drugs.  He was assessed by the Crisis Team at his van, and although ‘vulnerable’, it was not believed that he needed hospitalisation to a psychiatric unit.
22	A few months later, on 19 March 2018, HRH had contact with the Northern Mental Health Service.  The owner of ‘Lentil As Anything’ restaurant expressed concerns that HRH believed he was God, and that Odin ‘will bring dragons back’.  HRH reportedly displayed aggressive behaviour by slashing the tyres of the restaurant owner and by threatening staff (which required police attendance).  When assessed, HRH presented as emotionally labile and restless, spoke rapidly and was described as ‘loud, aggressive’.  He reported his mood to be ‘... Stable and best ever ...’.  But his thoughts were assessed as disorganised, he reported grandiose themes of ‘having deeper understanding of the meaning of the texts than anyone else and being all knowing about religions’, and he made allusions to ‘being God-like’.  He was involuntarily hospitalised to the High Dependency Unit of the Psychiatric Unit at Northern Hospital.
23	Dr Pandurangi reported:
[36]  He was seen by Dr George Antony, Psychiatrist, on 21 March 2018.  Dr Antony noted the events leading to the hospitalisation.  He told Dr Antony that he had ‘... parts of Jesus and Odin in him and was their direct descendant ...’.  Of his mental state, Dr Antony noted, ‘Andrew presented as a moderately groomed gentleman, dressed in multiple layers of colourful clothing ... sitting up in a bed playing a recorder, expansive gestures, intermittent eye-to-eye contact and superficial rapport ... his speech was normal in tone, tempo, volume and reaction time, often irrelevant but coherent ... prominent form and thought disorder was present ... content of thought revealed delusions as described about ... had compromised insight and impaired judgment’.  Dr Antony was of the opinion that [HRH’s] symptoms was suggestive of a ‘manic episode ?drug induced’.  He recommended that [HRH] was hospitalised to the intensive care part of the psychiatric unit for a ‘low stimulus environment and for further assessment and treatment’.
[37]  The treating team spoke to his mother, Angela, on 23 March 2018, who confirmed that he had met all his developmental milestones except that he did not acquire speech until the age of 4.  He had ‘few or no friends in pre-school or early primary school and was bullied a lot’.  He was diagnosed with ADHD when he was approximately 7 years old, and he was commenced on Ritalin.  She also confirmed that he had seen ‘several psychologists and a psychiatrist’ during his childhood.  He stopped taking Ritalin in his mid-teens, as ‘he didn’t like the way the medication made him feel’.
[38]  His mother confirmed a family history of Bipolar Disorder in his paternal grandfather who was treated with Lithium for nearly three decades.  She also alluded to two of his aunts suffering from depression.  He remained on the Psychiatric Unit for nearly three weeks and his mental state gradually improved on treatment with Quetiapine (antipsychotic medication) 400mg daily and Sodium Valproate (a mood stabiliser), 200mgdaily.  He was discharged from the Psychiatric Unit on 13 April 2018 to the Youth Early Psychosis Program (YEPP) on a Community Treatment Order (CTO).
[39]  A document titled Transition/Discharge Summary dated 13 July 2018 outlines his progress following discharge from the psychiatric unit.  It indicates that after an initial period where he regularly attended appointments, he began disengaging from the treating team.  On several occasions during interviews, he presented as ‘formally thought disordered as evidenced by tangential and circumstantial discussions ...’.  He would also present with ‘grandiose themes and some flight of ideas’ and presented with poor insight into his illness.  It indicates that he was difficult to contact and that ‘... despite being on a CTO, he had missed numerous appointments at the clinic and was last seen on 29 May 2018.  Numerous attempts were made via phone and Outreach to facilitate engagement with MH (Mental Health) Services’.  It was noted that he was discharged from the involuntary treatment by the Mental Health Tribunal in early July 2018, and subsequently, due to his non-engagement, was discharged by the Mental Health Service.
HRH’s history of drug and alcohol use
24	In his report, Dr Pandurangi described HRH’s history of drug and alcohol use as follows:
[40]  [HRH] began smoking cannabis in his mid-teens and the amount he used would ‘depend on availability’.  He stated that the use of cannabis was ‘on and off’ and he would go for ‘months’ without it.
[41]  He was introduced to ICE (methamphetamines) two years prior to his current incarceration.  He stated the use of ICE was to ‘keep me awake’.  He would use ‘on average a couple of times a month’ and would either smoke it or use it intravenously.
[42]  He used heroin during the month, following release from his previous incarceration and the current alleged offending.  He stated that he experimented with the drug on a ‘few’ occasions.
[43]  He has also experimented with other drugs such as ecstasy and hallucinogens.
[44]  He began drinking alcohol in his mid-teens and indicated that there was no specific pattern.  He would drink alcohol both regularly and would occasionally binge on it.  He denied any medical complications from drinking alcohol.
Psychiatric opinion
25	Dr Prashant Pandurangi, as I have mentioned, provided a report; and Dr Rajan Darjee, a consultant forensic psychiatrist, provided two reports, dated 4 May 2020 and 2 June 2020 (the latter report being an ‘addendum’ provided after reading the records of Justice Health and North Western Mental Health).  Both agreed that HRH has a defence of mental impairment within the meaning of the CMI Act.
26	In his report dated 13 December 2019, Dr Pandurangi offered the opinion that HRH
suffers from a Schizophrenic illness, as set out in the International Classification of Diseases – Tenth Edition (ICD-10).  His illness is characterised by a complex psychopathology involving themes of religious and grandiose delusions and identity, previous lives, spirits and reincarnation.  When unwell he also presents with disorganised thoughts and behaviour, persecutory delusions and passivity experiences.  Although he does not present with a crystallised delusional system, as it evolves, his presentation at various interviews is with consistent with the above themes and that of thought disorganisation.  Another important aspect to support the diagnosis of schizophrenia is the characteristic profound psychosocial decline, over the past few years, from a man who has been living his partner and children, to becoming itinerant, travelling aimlessly and living on the streets.
27	Dr Pandurangi was of the opinion that HRH would have been aware of the nature and quality of his conduct, and his intentions for attacking Ms Herron, but that
his actions would have been completely driven by his underlying psychotic beliefs, as he believed he had to take a particular course of action for self-preservation or would be himself killed.  His psychotic beliefs at the time of the alleged offending are clearly in keeping with his underlying complex psychopathology involving themes of religious and grandiose delusions and identity, previous lives, spirits and reincarnation.  At the time of the alleged offence, he was in midst of a relapse of his schizophrenic illness and in my opinion, he would have been unable to reason with a moderate degree of sense and composure, as perceived by reasonable people, that his conduct in attacking Ms Herron, was wrong. ...
28	Although Dr Darjee was of the view that HRH did not know the nature or quality of the conduct (believing that Ms Herron was someone from his past life) and did not know his conduct was wrong, he agreed with Dr Pandurangi’s opinion that HRH could not reason with a moderate degree of sense and composure about whether the conduct was wrong.  Thus, in his report dated 4 May 2020, Dr Darjee said of HRH:
[40]  In my view he was clearly suffering from a mental illness, i.e. schizophrenia, at the time of the alleged index offence.  If he was not suffering from this mental illness the attack on the victim would not have occurred, with no other factors playing a significant direct role in the killing.  Substance (cannabis and ‘ice’) use may have exacerbated his mental illness but his symptoms were not caused by substance use.
[41]  Due to this mental illness he did not know the nature and quality of the conduct.  He appears to have believed that the victim was someone else from his past life involved in conspiracies to harm him over time who could be reincarnated.  He felt that he had to destroy this being.  He likely believed that the victim was someone else or had been taken over by someone else.
[42]  He also did not know that the conduct was wrong.  He believed that she had caused harm to his wife in a past life, was interfering with his mind and intent on causing him serious harm.  He felt he had no choice but to destroy her to avenge what had been done and prevent further harm to him.  In my view he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
29	Dr Darjee confirmed his opinions in viva voce evidence to the Court.
Findings
30	There is no basis upon which I could reject the opinion expressed by both psychiatrists that, as a result of his mental illness, when HRH killed Ms Herron he would have been unable to reason with a moderate degree of sense and composure that his conduct, as perceived by reasonable people, was wrong.  
31	As a result of the combined effect of the psychiatrists’ opinions, I am well satisfied, on the balance of probabilities, that the defence of mental impairment is made out.  I am satisfied that, at the time that he killed Ms Herron, HRH was suffering from a schizophrenic illness such that, when he inflicted the fatal injuries on Ms Herron, he did not know his conduct was wrong, and could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.  The defence of mental impairment is thus made out — indeed it would be capricious to find otherwise — and HRH must accordingly be found not guilty of murder because of mental impairment.
32	Having found HRH not guilty because of mental impairment, given that there is no realistic prospect of releasing him unconditionally, s 23(a) requires me to declare him liable to supervision under Part 5.
33	Section 26(1) of the CMI Act provides that, once a person is declared liable to supervision under Part 5, the Court must make a supervision order; and s 26(2) provides that a supervision order may commit the person to custody in an appropriate place or release him or her on conditions decided by the Court.
34	Pursuant to s 21(4)(a) of the Act, I shall direct that a verdict of not guilty of murder because of mental impairment be recorded.  I shall also make a declaration under s 23(a) that HRH is liable to supervision under Part 5 of the Act.  
35	I will extend until 9.00 am on 14 September 2020, the time for the Secretary to the Department of Justice and Community Safety to file and serve the report required pursuant to s 41(1) of the CMI Act; and will request the Secretary to the Department of Health and Human Services to provide the court with a certificate of available services pursuant to s 47(1).  I will order that the matter be listed before me for further hearing at 10.15 am on 14 September 2020.
36	In the meantime, HRH will be remanded in custody.
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