ICE, PSYCHOSIS AND CRIMINAL RESPONSIBILITYA B A R R I S T ER ’S P E R S P E CT IVE

Tim Marsh LLb BSc• Chief Counsel at Victoria Legal Aid

• Criminal Barrister

• Former member of the Mental Health Review Board

• Specialist in Mental Impairment and Unfitness to be Tried work, particularly homicides

I go to court

I raise two kids

My professional passion is representing clients with mental illnesses and cognitive disabilities

Ice, Ice baby: the rise of methamphetamine• By the late 1990s, over 95 per cent of meth/amphetamine seizures

nationally involved methamphetamine, while amphetamine seizures were becoming increasingly uncommon

(Australian Crime Commission 2003, 2006).

Ice, Ice baby: the rise of methamphetamine• The emergence of crystalline methamphetamine and ‘base’

methamphetamine was also associated with two further changes. Firstly, there was an overall increase in the purity of methamphetamine from 1997, including a significant increase in the purity of the powder form of the drug, or ‘speed’ (McKetin, McLaren & Kelly 2005).

• Secondly, there was an increase in the smoking of crystalline methamphetamine, particularly among younger non-injecting drug users (McKetin, McLaren & Kelly 2005; Stafford et al. 2005b).

• Smoking methamphetamine is associated with a high level of dependence compared to other non-injecting routes of administration (McKetin, Kelly & McLaren 2006).

Ice, Ice baby: the rise of methamphetamine• A third shift that occurred in the market for methamphetamine was

an increase in injection of the drug among heroin users subsequent to the Australian heroin shortage in 2001.

• At this time, harms associated with the use of methamphetamine peaked, and there was a popular perception that the increased use of methamphetamine was a response to the heroin shortage.

Ice, Ice baby: the rise of methamphetamine• 2000’s see a rise in use of methamphetamine as a stimulant drug

among other cohorts. While a lot has been made of the 'conversion' of preferential heroin users to methamphetamine use, the ubiquity and affordability of methamphetamine in low socioeconomic groups has seen an unprecedented rise in use.

Ice, Ice baby: the rise of methamphetamine• Some practical observations.

• Heroin use had a characteristic epidemiology. At the height of the mid 90s heroin epidemic, areas like Smith Street, Victoria Street and the corner of Russell and Bourke Streets (aka the 'Golden Elbow') were known centres of use and dealing.

• Characteristically, heroin was non-indigenous to Australia and its distribution seemed to conform to the pattern of starting in urban centres and ports, spreading out into rural and regional areas.

Ice, Ice baby: the rise of methamphetamine• Some practical observations.

• Ice, in distinction is capable of local manufacture, and the nature of its manufacture often sees clandestine laboratories being built and run in remote or regional areas. In that sense, the rise in ice usage seems to have had an impact on regional centres that is quite different to heroin.

Ice, Ice baby: the rise of methamphetamine• Some practical observations.

• There does not seem to be very strong evidence that ice use has driven up the overall crime rate significantly:

• Although these studies show that a sizeable proportion of regular meth/amphetamine users have engaged in violent crime (Cartier, Farabee & Prendergast 2006; Hall & Hando 1994; Klee & Morris 1994; Sommers & Baskin 2006; Sommers, Baskin & Baskin-Sommers 2006), involvement in violent crime is relatively common among illicit drug users, and is not specific to methamphetamine users. In fact, the past year prevalence of violent crime among regular methamphetamine users in NSW (McKetin, McLaren & Kelly 2005) is roughly comparable to that seen among other populations of regular illicit drug users (Hall & Hando 1994; Lynch et al. 2003; Ross et al. 2002).

Ice, Ice baby: the rise of methamphetamine• Some practical observations.

• There is weak evidence that correlates the rise in ice use with a rise in violent assaults. The overwhelming experience of criminal legal practitioners and police, however, is that the rise in the severity of assaults and the bizarreness of serious assaults has increased dramatically. In that sense, the statistics do not tell the whole story.

• Experienced homicide detectives talk of attending scenes where victims have died of literally hundreds of stab wounds. The level of gratuitiousness and excessiveness of conduct in murders has undoubtedly increased.

Methamphetapine and sentencing

Methamphetapine and sentencing• 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.

Methamphetapine and sentencing• As Maxwell P, Nettle and Redlich JJA said in their joint judgment in R v

Martin:

[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.

Methamphetapine and sentencing• As Maxwell P, Nettle and Redlich JJA said in their joint judgment in R

v Martin:

[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.

Methamphetapine and sentencing• An offender’s culpability is unlikely to be reduced where he or she has

a history of using drugs such as ‘ice’, which are known to often lead to hallucinations and violence. Such a scenario is similar to the problem that arises in ordinary cases of intoxication (see, e.g., DPP v Kao [2009] VSCA 273 [35], [42] (Weinberg JA and Coghlan AJA)).

Methamphetapine and sentencing• For example, in R v Rees [2011] VSC 523, the offender, who regularly used

drugs, seriously injured a friend whilst under the influence of LSD. He had not previously experienced psychotic symptoms while under the influence of drugs or alcohol, and had never before been violent. In the circumstances, the prosecution conceded that his drug-induced psychosis could be treated as a mitigating factor. Hollingworth J explained at [34]:• In some circumstances, intoxication (whether by drugs or alcohol) may mitigate the

offence, because the offender has by reason of the intoxication acted out of character; in other circumstances, intoxication may aggravate the offence, because of the recklessness with which the offender became intoxicated. Where an offender knows of the effect on themselves of alcohol or drugs, the voluntary ingestion of such substances is an aggravating factor. The critical factor in determining the significance of a drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender.

Methamphetapine and impairment

Methamphetapine and impairment• …that every man is to be presumed to be sane, and ... that to

establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.

• R v M’Naughten (1840)

Methamphetapine and impairment• In Radford, King CJ said:

• ...I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as a disease of the mind as that expression is not in the M’Naghten Rules.

• This statement was approved in Falconer, where the High Court set out the common law defence of insanity.

Methamphetapine and impairment• CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 -

SECT 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.

Methamphetapine and impairment• In the second reading speech for the Crimes (Mental Impairment and

Unfitness to be Tried) Bill, the Attorney-General explained: • The term ‘insanity’ has been replaced by the term ‘mental impairment’ because

the former term is antiquated and carries [a] historical stigma. However, it is important to note that the bill does not alter the existing criminal law in relation to determining criminal responsibility … The bill makes it clear that the new defence of mental impairment has the same meaning as the defence formerly known as the defence of insanity and is to be interpreted accordingly

Methamphetapine and impairment• This position was affirmed in the case of R v Sebalj where it was held

that ‘the term “mental impairment” should not be construed as changing the common law but construed as referring to the concept of “a disease of the mind” used in the common law defence of insanity’.

• The M’Naghten elements of the defence were added to the statutory defence without any alteration. Thus, the changes made by the CMIA to the defence of mental impairment were largely changes in terminology and not expected to affect the scope of the defence in practice.

Methamphetapine and impairment• Acute intoxication is therefore not a mental state that does not

permit the consideration of a mental impairment defence. It's a temporary disorder or disturbance of an otherwise healthy mind

• Similarly, psychosis arising from methamphetamine use falls into the same category

Methamphetapine and impairment• What if:

• A person has a pre-existing psychotic illness and subsequently uses methamphetamine?

• A person uses methamphetamine and subsequently develops schizophrenia

• Evidentiary issues become very complex.

Methamphetapine and impairment• R v Konidaris

• Increasingly bizarre behaviour against a background of cannabis and cocaine use, culminating in the homicide of the accused’s grandparents and arson of their house;

• Arrested, remanded and transferred to Thomas Embling Hospital. Good response to medication.

• Diagnosis of schizophrenia with a differential diagnosis of substance indicedpsychotic disorder

• Deliberate delay of proceedings to increase the time between cessation of drug use and resolution of proceedings. Ongoing presence of negative symptoms –proceeded as consent mental impairment hearing.

Methamphetapine and impairment• R v Gibson

• 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.